E93 
E91 



Copy 2 



I 



ESSAYS 



ON THE 

PRESENT CRISIS IN THE CONDITION 

OF 

THE AMERICAN INDIANS 

FIRST PUBLISHED IN 

THE NATIONAL INTELLIGENCER, 

UNDER THE SIGNATURE OF 
WILLIAM PENN, 



Boston : 

PUBLISHED BY PERKINS & MARVIN. 
1829. 



Ml 

ADVERTISEMENT. 

In the letter, which contained the two first papers of the following series, addressed to the 
Editors of the National Intelligencer, an introductory statement was given, for the purpose 
of disclosing the general design of the writer, and describing the manner in which he 
intended to pursue the investigation. It is deemed proper to copy that statement, as a 
preface to the formal discussion. 

Gentlemen : I send for your paper two numbers of a series of Essays on the pending and 
ripening controversy between the United States and the Indians. I hope you will insert 
them. Permit me, as an inducement, to make the following suggestions : 

1. This is a subject which must be abundantly discussed in our country. 

2. It will be among the most important, and probably the most contested, business of the 
21st Congress. Some able members of Congress, to my certain knowledge, wish to have the 
matter discussed. 

3. I expect to make it appear, by a particular examination of treaties, that the United 
States are bound to secure to the Cherokees the integrity and inviolability of their territory, 
till they voluntarily surrender it. 

4. In the course of this investigation, I shall not agree with the present Executive of the 
United States, in the construction which he gives to treaties ; but shall be sustained by the 
uniform tenor of our negociations with the Indians, and legislation for them, from the origin 
of our government to the present day. 

5. My discussions will not assume a party character at all ; and whenever I speak of the 
President, or the Secretary of War, it shall always be by their official designation, and in a 
respectful manner. Though I think that the President has greatly mistaken his powers and 
his duty, in regard to the Indians, I have no wish concerning him, but that he may be a 
wise and judicious ruler of our growing republic. 

1 have always approved of the decorum which you have observed, in speaking of public 
characters. 

6. I propose to furnish two numbers a week, that they may be copied into semi-weekly 
papers, if their editors see fit. 

7. The two numbers now sent have been read to an eminent civilian, and approved by 
him ; and I shall endeavor to be careful in my principles, and accurate in my conclusions. 
At any rate, should I fall into error, I am perfectly willing that my error should be exposed. 

8. Should you insert these papers, as I hope you may, I would request that there may be 
as little delay as possible ; for there are many symptoms that the country will be awake to 
the discussion, and is impatient for it. 

In the mean time, permit me to use the signature of that upright legislator and distinguished 
philanthropist, 

WILLIAM PENJV. 

Daily Nat. Intell. Aug. 1, 1829.] 



PRESENT CRISIS IN THE CONDITION 



OF THE 

AMERICAN INDIANS. 



No. I. 

Contents of this Number. — Information needed — Great interests at stake— The character of 
our country involved — The world will judge in the case — Value of national character- 
Apprehensions of the divine displeasure — Statement of the controversy. 

Every careful observer of public affairs must have seen, that a cri- 
sis has been rapidly approaching, for several years past, in reference 
to the condition, relations, and prospects, of the Indian tribes, in the 
southwestern parts of the United States. The attention of many of 
our most intelligent citizens has been fixed upon the subject with 
great interest. Many others are beginning to inquire. Several public 
documents, which have recently appeared in the newspapers, serve to 
awaken curiosity, and to provoke investigation. 

Still, however, the mass of the community possess but very little in- 
formation on the subject ; and, even among the best informed, scarcely 
a man can be found, who is thoroughly acquainted with the questions 
at issue. Vague and inconsistent opinions are abroad ; and however 
desirous the people may be of coming at the truth, the sources of 
knowledge are not generally accessible. Some persons think, that 
the Indians have a perfect right to the lands which they occupy, ex- 
cept so far as their original right has been modified by treaties fairly 
made, and fully understood at the time of signing. But how far such 
a modification may have taken place, or whether it has taken place at 
all, these persons admit themselves to be ignorant. Others pretend, 
that Indians have no other right to their lands, than that of a tenant 
at will ; that is, the right of remaining where they are, till the oioners 
of the land shall require them to remove. It is needless to say, that, 
in the estimation of such persons, the white neighbors of the Indians 
are the real owners of the land. Some people are puzzled by what is 
supposed to be a collision between the powers of the general govern- 
ment and the claims of particular States. Others do not see that 



4 



there is any hardship in bringing the Indians under the laws of the 
States,*in the neighborhood of which they live ; or, as the phrase is, 
within the limits of which they live. Some consider it the greatest 
kindness that can be done to the Indians to remove them, even with- 
out their consent and against their will, to a country where, as is sup- 
posed, they will be in a condition more favorable to their happiness. 
Others think, that if they are compelled to remove, their circum- 
stances will be in all respects worse than at present; and that, suffer- 
ing under a deep sense of injury, and considering themselves trodden 
down by the march of inexorable oppression, they will become utterly 
dispirited, and sink rapidly to the lowest degradation and to final ex- 
tinction. 

So great a diversity of opinion is principally owing to want of cor- 
rect information. It is my design, Messrs. Editors, to furnish, in a 
few numbers of moderate length, such materials, as will enable every 
dispassionate and disinterested man to determine where the right of 
the case is. 

In the mean time, I would observe, that the people of the United 
States owe it to themselves, and to mankind, to form a correct judg- 
ment in this matter. The questions have forced themselves upon us, 
as a nation : — Wliat is to become of the Indians ? Have they any 
rights ? If they have, What are these rights 1 and how are they to be 
secured 1 These questions must receive a practical answer ; and that 
very soon. What the answer shall be, is a subject of the deepest con- 
cern to the country. 

The number of individuals, who are interested in the course now to 
be pursued, is very great. It is computed, that there are within our 
national limits more than 300,000 Indians ; some say 500,000 ; and, 
in the southwestern States, the tribes whose immediate removal is in 
contemplation, have an aggregate population of more than 60,000. 
The interests of all these people are implicated, in any measure to be 
taken respecting them. 

The character of our government, and of our country, may be 
deeply involved. Most certainly an indelible stigma will be fixed upon 
us, if, in the plenitude of our power, and in the pride of our superior- 
ity, we shall be guilty of manifest injustice to our weak and defence- 
less neighbors. There are persons among us, not ignorant, nor preju- 
diced, nor under the bias of private interest, who seriously apprehend, 
that there is danger of our national character being most unhappily 
affected, before the subject shall be fairly at rest. If these individuals 
are misled by an erroneous view of facts, or by the adoption of false 
principles, a free discussion will relieve their minds. 

It should be remembered, by our rulers as well as others, that this 
controversy, (for it has assumed the form of a regular controversy,) 
will ultimately be well understood by the whole civilized world. No 
subject, not even war, nor slavery, nor the nature of free institutions, 
will be more thoroughly canvassed. The voice of mankind will be 
pronounced upon it ; — a voice, which will not be drowned by the 
clamor of ephemeral parties, nor silenced by the paltry considerations 
of local or private interest. Such men as the Baron Humboldt and 
the Due de Broglie, on the continent of Europe, and a host of other 
statesmen, and orators, and powerful writers, there and in Great Brit- 



5 



ain, will not be greatly influenced, in deciding a grave question of 
public morality, by the excitements of one of our elections, or the self- 
ish views of some little portions of the American community. Any 
course of measures, in regard to the Indians, which is manifestly fair, 
and generous, and benevolent, will command the warm and decided 
approbation of intelligent men, not only in the present age, but in all 
succeeding times. And with equal confidence it may be said, if, in 
the phraseology of Mr. Jefferson, the people of the United States 
should "feel power, and forget right ;" — if they should resemble a 
man, who, abounding in -wealth of every kind, and assuming the office 
of lawgiver and judge, first declares himself to be the owner of his 
poor neighbor's little farm, and then ejects the same neighbor as a 
troublesome incumbrance ; — if, with land enough, now in the undis- 
puted possession of the whites, to sustain ten times our present popu- 
lation, we should compel the remnants of tribes to leave the places, 
which, received by inheritance from their fathers and never alienated, 
they have long regarded as their permanent homes ; — if, when asked 
to explain the treaties, which we first proposed, then solemnly execu- 
ted, and have many times ratified, we stammer, and prevaricate, and 
complete our disgrace by an unsuccessful attempt to stultify, not 
merely ourselves, but the ablest and wisest statesmen, whom our 
country has yet produced ; — and if, in pursuance of a narrow and self- 
ish policy, we should at this day, in a time of profound peace and 
great national prosperity, amidst all our professions of magnanimity 
and benevolence, and in the blazing light of the nineteenth century, 
drive away these remnants of tribes, in such a manner, and under such 
auspices, as to insure their destruction ; — if all this should hereafter 
appear to be a fair statement of the case ; — then the sentence of an 
indignant world will be uttered in thunders, which will roll and rever- 
berate for ages after the present actors in human affairs shall have 
passed away. If the people of the United States will imitate the ruler 
who coveted Naboth's vineyard, the world will assuredly place them 
by the side of Naboth's oppressor. Impartial history will not ask 
them, whether they will feel gratified and honored by such an associa- 
tion. Their consent to the arrangement will not be necessary. The 
revolution of the earth in its orbit is not more certain. 

It may be truly said, that the character which a nation sustains, in 
its intercourse with the great community of nations, is of more value 
than any other of its public possessions. Our diplomatic agents have 
uniformly declared, during the whole period of our national history, in 
their discussions with the agents of foreign powers, that we offer to 
others the same justice which we ask from them. And though, in 
times of national animosity, or when the interests of different commu- 
nities clash with each other, there will be mutual reproaches and re- 
criminations, and every nation will, in its turn, be charged with un- 
fairness or injustice, still, among nations, as among individuals, there 
is a difference between the precious and the vile ; and that nation will 
undoubtedly, in the Jong course of years, be most prosperous and most 
respected, which most sedulously cherishes a character for fair deal- 
ing, and even generosity, in all its transactions. 

There is a higher consideration still. The Great Arbiter of Na- 
tions never fails to take cognizance of national delinquencies. No 



6 



sophistry can elude his scrutiny ; no array of plausible arguments, or 
of smooth but hollow professions, can bias his judgment ; and he has 
at his disposal most abundant means of executing his decisions. In 
many forms, and with awful solemnity, he has declared his abhorrence 
of oppression in every shape ; and especially of injustice perpetrated 
against the weak by the strong, when strength is in fact made the only 
rule of action. The people of the United States are not altogether 
guiltless, in regard to their treatment of the aborigines of this conti- 
nent ; but they cannot as yet be charged with any systematic legisla- 
tion on this subject, inconsistent with the plainest principles of moral 
honesty. At least, I am not aware of any proof, by which sUch a 
charge could be sustained. 

Nor do I, in these preliminary remarks, attempt to characterize 
measures now in contemplation. But it is very clear, that our govern- 
ment and our people should be extremely cautious, lest, in judging 
between ourselves and the Indians, and carrying our own judgment 
into execution with a strong hand, we incur the displeasure of the 
Most High. Some very judicious and considerate men in our country 
think, that our public functionaries should stop where they are'; that, 
in the first place, we should humble ourselves before God and the 
world, that we have done so much to destroy the Indians, and so little 
to save them ; and that, before another step is taken, there should be 
the most thorough deliberation, on the part of all our constituted 
authorities, lest we act in such a manner as to expose ourselves to the 
judgments of Heaven. 

I would have omitted this topic, if I thought that a majority of read- 
ers would regard its introduction as a matter of course, or as a piece 
of affectation, designed for rhetorical embellishment. In my delibe- 
rate opinion, it is more important, and should be more heeded, than 
all other considerations relating to the subject ; and the people of the 
United States will find it so, if they should unhappily suppose them- 
selves above the obligation to do justly, love mercy, and walk humbly 
with their God. 

I close this introductory number, by stating what seems to be the 
present controversy between the whites and the Indian tribes of the 
southwestern States : I say the whites, (that is our country generally,) 
because certain positions are taken by the government of the United 
States, and certain claims are made by the State of Georgia, and cer- 
tain other claims by the States of Alabama and Mississippi. The In- 
dians do not admit the validity of any of these positions or claims; 
and if they have a perfect original title to the lands they occupy, 
which title they have never forfeited nor alienated, their rights cannot 
be affected by the charters of kings, nor by the acts of provincial 
legislatures, nor by the compacts of neighboring States, nor by the 
mandates of the executive branch of our national government. 

The simple question is : Have the Indian tribes, residing as sepa- 
rate communities in the neighborhood of the whites, a permanent title 
to the territory, which they inherited from their fathers, ivhich they 
have neither forfeited nor sold, and which they now occupy ? 

For the examination of this question, let the case of a single tribe 
or nation be considered ; for nearly the same principles are involved 
in the claims of all the Indian nations. 



7 



The Cherokees contend, that their nation has been in possession of 
their present territory from time immemorial ; that neither the king of 
Great Britain, nor the early settlers of Georgia, nor the State of Geor- 
gia after the revolution, nor the United States since the adoption of 
the federal constitution, have acquired any title to the soil, or any 
sovereignty over the territory ; and that the title to the soil and sove- 
reignty over the territory have been repeatedly guaranteed to the 
Cherokees, as a nation, by the United States, in treaties which are 
now binding on both parties. 

The government of the United States alleges, as appears by a letter 
from the Secretary of War,* dated April 18, 1829, that Great Britain, 
previous to the revolution, " claimed entire sovereignty within the 
limits of what constituted the thirteen United States that £ all the 
rights of sovereignty which Great Britain had within said States be- 
came vested in said States respectively, as a consequence of the decla- 
ration of independence, and the treaty of 1783 ;' that the Chero- 
kees were merely 'permitted' to reside on their lands by the United 
States ; that this permission is not to be construed so as to deny to 
Georgia the exercise of sovereignty ; and that the United States has 
no power to guarantee any thing more than a right of possession, till 
the State of Georgia should see fit to legislate for the Cherokees, and 
dispose of them as she should judge expedient, without any control 
from the general government. 

This is a summary of the positions taken by the Secretary of War ; 
and, though not all of them expressed in his own language, they are in 
strict accordance with the tenor of his letter. 

In my next number, I shall proceed to inquire, Wliat right have 
the Cherokees to the lands which they occupy ? 



No. II. 

The Cherokees have the same rights as other men— They are not hunters— They have sold 
much good land to the United States — Original extent of their country — Its present 
extent — The mere claims of one party cannot affect the rights of another party — 
Necessity of examining treaties. 

In my first number I prepared the way to inquire, What right have 
the Cherokees to the lands which they occupy ? This is a plain ques- 
tion, and easily answered. 

The Cherokees are human beings, endowed by their Creator with 
the same natural rights as other men. They are in peaceable posses- 
sion of a territory which they have always regarded as their own. 
This territory was in possession of their ancestors, through an un- 
known series of generations, and has come down to them with a title 
absolutely unincumbered in every respect. It is not pretended, that 
the Cherokees have ever alienated their country, or that the whites 
have ever been in possession of it. 

If the Cherokees are interrogated as to their title, they can truly 

* See Appendix. 



8 \ 



say, " God gave this country to our ancestors. We have never been 
in bondage to any- man. Though we have sold much land to our 
white neighbors, we have never bought any from them. We own the 
land which we now occupy, by the right of the original possessors ; a 
right which is allowed in all countries to be of incontestible validity. 
We assert, therefore, that no human power can lawfully compel us to 
leave our lands." 

If the Cherokees are correct in their statement of facts, who can 
resist their conclusion? We might as well ask the Chinese, what 
right they have to the territory which they occupy. To such a ques- 
tion they would answer, " God gave this land to our ancestors. Our 
nation has always been in possession of it, so far as history and tradi- 
tion go back. The nations of Europe are comparatively of recent 
origin ; the commencement of ours is lost in remote antiquity." 

What can be said to such a statement as this ? Who can argue so 
plain a case ? 

It has been alleged, that the savage of the wilderness can acquire 
no title to the forests, through which he pursues his game. Without 
admitting this doctrine, it is sufficient to reply here, that it has no 
application to the case of the Cherokees. They are at present neither 
savages nor hunters. It does not appear that they ever were mere 
wanderers, without a stationary residence. At the earliest period of 
our becoming acquainted with their condition, they had fixed habita- 
tions, and were in undisputed possession of a widely extended coun- 
try. They were then in the habit of cultivating some land near their 
houses, where they planted Indian corn, and other vegetables. From 
about the commencement of the present century, they have addicted 
themselves more and more to agriculture, till they now derive their 
support from the soil, as truly and entirely as do the inhabitants of 
Pennsylvania or Virginia. For many years they have had their herds, 
and their large cultivated fields. They now have, in addition, their 
schools, a regular civil government, and places of regular Christian 
worship. They earn their bread by the labor of their own hands, 
applied to the tillage of their own farms ; and they clothe themselves 
with fabrics made at their own looms, from cotton grown in their own 
fields. 

The Cherokees did not show themselves unwilling to sell their 
lands, so long as an adequate motive was presented to their minds. 
During every administration of our national government, applications 
were made to them for the purpose of obtaining additional portions of 
their territory. These applications were urged, not only, nor princi- 
pally, by the consideration of the money or presents which they were 
to receive in exchange, but often, and strongly, by the consideration 
that they would become an agricultural people, like the whites — that 
it was for their interest to have their limits circumscribed, so that their 
young men could not have a great extent of country to hunt in ; and 
that, when they became attached to the soil, and engaged in its culti- 
vation, the United States would not ask them to sell any more land. 
Yielding to these arguments, and to the importunities of the whites, 
the Cherokees sold, at different times, between the close of the revo- 
lutionary war and the year 1820, more than three quarters of their 
original inheritance. That the reader may have some definite idea 



9 

of the territory in question, he should pursue, the following delineation 
by the aid of a good map. 

It would seem that the Cherokees possessed land extending to the 
following limits, if not beyond them, viz : From the mouth of Duck 
river, in Tennessee, on the west, to the waters of French Broad, in 
North Carolina, on the east ■ and from the head waters of the Hol- 
ston, in Virginia, on the north, to some distance down the Oconee, in 
Georgia, on the south ; comprising, beside what is now the Cherokee 
country, more than half of the State of Tennessee, the southern part 
of Kentucky, the southwest corner of Virginia,, a considerable portion 
of both the Carolinas, a small portion of Georgia, and the northern 
part of Alabama. This tract probably contained more than 35,000,000 
acres, of which a large proportion is extremely fertile, and some of it 
not inferior to any land in North America, or perhaps in the world. 
The country is also generally healthy, and the climate delightful. Of 
all this vast and beautiful tract, watered by numerous rivers, which 
find their way to the ocean, some of them circuitously by the Mis- 
sissippi, and others more directly to the gulf of Mexico and the At- 
lantic, the Cherokees now retain less than 8,000,000 acres, of a quality 
far below the average quality of that which they have sold. Georgia 
claims 5,000,000 acres of this remnant, as falling within the map of 
that State. Alabama claims nearly 1,000,000 of the residue. The 
portions which, in the general division, will fall to Tennessee and North 
Carolina, seem hardly worth inquiring about ; for, if the other portions 
are given up, or taken by force, there will be no motive for retaining 
these. 

To every application made for their lands within the last ten years, 
the Cherokees have said, " We are not disposed to sell any more. 
We have betaken ourselves to an agricultural life. We are making 
progress in civilization. We are attached to our schools and our 
Christian teachers ; to our farms; to our native rivers and mountains. 
We have not too much land for our own comfort, and for affording us 
a fair chance in the experiment we are making." This language has 
been repeated in many forms, and with every indication of sincerity 
and earnestness. 

The assertion of the Cherokees, that their present country is not 
too large for a fair experiment in the work of civilization, is undoubt- 
edly correct. The wisest men, who have thought and written on this 
subject, agree in the opinion, that no tribe of Indians can rise to real 
civilization, and to the full enjoyment of Christian society, unless they 
can have a community of their own ; and can be so much separated 
from the whites, as to form and cherish somet 1 'ng of a national char- 
acter. If the limits of the Cherokee country were much smaller than 
they are, this would be impracticable. 

Thus stands the case ; and it is now my intention to inquire how 
the government of the United States has regarded the Indian title, and 
how it has been regarded by the several States in the vicinity of the 
Cherokees. 

Before this inquiry is commenced, however, it is proper to say, that 
the title of one party cannot be safely decided by the mere claims of 
another party. If those claims are founded in justice, they ought to 
prevail ; if not, they should be set aside. Now whatever doctrines 
2 



10 



the government of the United States may have held and promulgated 
on this subject, they cannot be binding upon the Indians, unless ac- 
knowledged by them to be binding, or unless founded in the immuta- 
ble principles of justice. 

Let us suppose the kings of Great Britain had issued an annual pro- 
clamation, from the time of the discovery of America to the peace of 
1783, claiming all the lands in North America between 30 and 50 
north latitude, and declaring that all the nations, tribes, and commu- 
nities, then residing on said lands, were subject to the laws of Great 
Britain, and that the title to all these lands was vested in, and of right 
belonged to, the crown of that realm ; and let us further suppose, that 
the government of the United States had issued an annual proclama- 
tion, from the date of the declaration of independence to the present 
day, applying the same doctrine to our advantage, and declaring, that 
all the Indian nations within the limits prescribed by the peace of 
1783, were subject to the laws of the United States, and that the 
lands, of which they were in possession, belonged of right to the Uni- 
ted States: so long as the Indians did not acknowledge the binding 
nature of these claims, the mere claims would have amounted to 
nothing. It was the practice of the king of England, during several 
centuries, to declare himself, (as often as he issued a proclamation on 
any subject whatever,) king of Great Britain, France and Ireland. 
Was he therefore king of France 1 What if he were now to declare 
himself king of Great Britain and China? It would be a cheap way, 
indeed, of acquiring a title, if merely setting up a claim would answer 
the purpose. 

By what right do the people of the United States hold the lands 
which they occupy 1 the people of Ohio, for instance, or of Connecti- 
cut 1 By the right of occupancy only, commenced by purchase from 
the aboriginal possessors. It would be folly to plead the charters of 
kings, or the mere drawing of lines of latitude and longitude. The 
powers of Europe have indeed acknowledged our right to our country. 
But what if they had not'? Our right, is not at all affected by their 
claims, or acknowledgments. The same doctrine is applicable to the 
condition of the Cherokees. They have a perfect right to their coun- 
try, — the right of peaceable, continued, immemorial occupancy ; — 
and although their country may be claimed by others, it may lawfully 
be held by the possessors against all the world.* 

The Cherokees need not fear, however, that their rights are in dan- 
ger, as a consequence of any principles sanctioned by the national 
legislature of the United States. The co-ordinate branches of our 
government have not yet declared, that Indians are tenants at will. 
On the other hand, the whole history of our negotiations with them, 
from the peace of 1783 to the last treaty to which they are a party, 
and of all our legislation concerning them, shows, that they are re- 

* Some shallow writers on this subject have said, that "the Cherokees have only 
the title of occupancy ;" just as though the title of occupancy were not the best 
title in the world, and the only original foundation of every other title. Every 
reader of Blackstone knows this to be the fact. As to the past, the Cherokees have 
immemorial occupancy ; as to the future, they have a perfect right to occupy their 
country indefinitely. What can they desire more ? 



11 



garded as a separate community from ours, having a national exist- 
ence, and possessing a territory, which they are to hold in full pos- 
session, till they voluntarily surrender it. 

I now proceed to the examination of treaties, between the United 
States and the Cherokee nation. And here I would apprize the 
reader, that the case can never be fairly and fully understood, without 
a reference to every material article, in every treaty which has been 
made between these parties. Unless such a reference is had, no 
reader can be sure that he has a view of the whole ground ; and a 
caviller might object, that there had been omissions, in order to con- 
ceal a weak part of the case. This is a subject, too, which the people 
of the United States must have patience to investigate. When meas- 
ures are in progress, which have a bearing on the permanent rights 
and interests of all the Indians, it must not be thought tedious to read 
an abstract of the solemn engagements, by which we have become 
bound to one of these aboriginal nations. 

In the revolutionary contest, the Cherokees took part with the king 
of Great Britain, under whose protection they, then considered them- 
selves, just as they now consider themselves under the protection of 
the United States. After the peace of 1783, it does not appear that 
any definite arrangement was made with this tribe till the year 1785. 
In the course of that year, the Old Congress appointed four commis- 
sioners plenipotentiary, men of distinction at the south, to meet the 
head men and warriors of the Cherokees, and negociate a treaty of 
peace. 

The parties met at Hopewell, now in Pendleton District, S. C. ; 
and, on the 2Sth of November, executed an instrument, which is usu- 
ally cited as the treaty of Hopewell. The abstract of this instrument, 
with some remarks upon it, will be given in my next number. 



No. III. 

First compact between the United States and the Cherokees; viz. the treaty of Hopewell — 
Abstract of this treaty — Reasons for thinking it still in force — The Old Congress had the 
power to make treaties — Argument of the Secretary of War — Meaning of the phrases 

to give peace, and to allot. 

The title of the treaty to which I referred in my last number, is in 
these words : 

" Articles concluded at Hopewell, on the Keowee, between Benjamin Hawkins, 
Andrew Pickens, Joseph Martin, and Lachlan Mcintosh, commissioners plenipoten- 
tiary of the United States of America, of the one part, and the head men and war- 
riors of all the Cherokees, of the other:" 

The preface to the articles is thus expressed : 

" The commissioners plenipotentiary of the United States in Congress assembled, 
give peace to all the Cherokees, and receive them into the favor and protection of 
the United States of America, on the following conditions :" 

Before I proceed to make an abstract of the articles, it is proper to 
say, that in regard to this and all subsequent treaties, I shall be as 
brief as appears to be consistent with putting the reader in full posses- 
sion of the case. The more material parts of treaties I shall cite 



12 



literally ; and these will be distinguished by double inverted commas. 
Other parts will be abridged ; but where the principal words of any 
abridgment are taken from the treaties, such passages will be marked 
by single inverted commas. The less material parts will be expressed 
as briefly as possible in my own language ; but in all these cases I 
pledge myself to the strictest fidelity. At least the subject of every 
article shall be mentioned, that the reader may judge of the general 
aspect of the whole, as well as of the meaning of the most important 
parts. The treaty of Hopewell, then, reads as follows : 

"Art. 1. The head men and warriors of all the Cherokees shall restore all the 
prisoners, citizens of the United States, or subjects of their allies, to their entire lib- 
erty : they shall also restore all the negroes, and ail ether property taken during the 
late war, from the citizens, to such person, and at such time and place, as the com- 
missioners shall appoint. 

" Art. 2. The commissioners of the United States in Congress assembled, shall 
restore all the prisoners taken from the Indians during the late war, to the head men 
and warriors of the Cherokees, as early as is practicable. 

" Art. 3. The said Indians, for themselves, and their respective tribes and towns, 
do acknowledge all the Cherokees to be under the protection of the United States 
of America, and of no other sovereign whatsoever. 

" Art. 4. The boundary allotted to the Cherokees for their hunting grounds, be- 
tween the said Indians and the citizens of the United States, within the limits of the 
United States of America, is, and shall be the following :" This boundary defines 
the northern and eastern limits of the Cherokee country. 

" Art. 5. If any citizen of the United States, or other person, not being an In- 
dian, shall attempt to settle on any of the lands westward and southward of the said 
boundary, which are hereby allotted to the Indians for their hunting grounds, or 
having already settled and will not remove from the same within six months after 
the ratification of this treaty, such person shall forfeit the protection of the United 
States, and the Indians may punish him, or not, as they please." Then follows a 
proviso, as to settlers " between the fork of French Broad and Holston," whose 
case is to be referred to Congress. 

" Art. 6. If any Indian, or Indians, or persons residing among them, or who 
shall take refuge in their nation, shall commit a robbery, or murder, or other capital 
crime, on any citizen of the United States, or person under their protection, the 
nation, or the tribe, to which such offender or offenders may belong, shall be bound 
to deliver him or them up, to be punished according to the ordinances of the United 
States 4 provided that the punishment shall not be greater, than if the crime had 
been committed by a citizen on a citizen.' 

" Art. 7. If any citizen of the United States, or person under their protection, 
6hall commit a robbery or murder, or other capital crime, on any Indian," he shall 
be punished in the same manner as if ' the crime had been committed on a citizen ;' 
and the punishment shall be in the presence of some of the Cherokees, who shall 
have due notice of the time and place. 

Art. 8. No punishment of the innocent for the guilty, on either side, " except 
where there is a manifest violation of this treaty ; and then it shall be preceded first 
by a demand of justice ; and if refused, then by a declaration of hostilities." 

" Art. 9. For the benefit and comfort of the Indians, and for the prevention of 
injuries or oppressions on the part of the citizens or Indians, the United States in 
Congress assembled shall have the sole and exclusive right of regulating the trade 
with the Indians, and managing all their affairs, in such manner as they think proper. 

" Art. 10. Until the pleasure of Congress be known respecting the 9th article," 
a temporary provision is made for the security of traders. 

"Art. 11. The said Indians shall give notice" of any designs "formed in any 
neighboring tribe, or by any person whomsoever, against the peace, trade, or inte- 
rests of the United States." 

" Art. 12. That the Indians may have full confidence in the justice of the United 
States, respecting their interests, they shall have a right to send a deputy of their 
choice, whenever they think fit, to Congress. 

" Art. 13. The hatchet shall be forever buried, and the peace given by the 
United States, and friendship re-established between the said States on the one 
part, and all the Cherokees on the other, shall be universal ; and the contracting 



13 



parties shall use their utmost endeavors to maintain the peace given as aforesaid, and 
friendship re-established. " 

These articles were signed by the four commissioners of the United 
States, and by thirty-seven head men and warriors of the Cherokees, 
in the presence of William Elount, afterwards Governor of Tennessee, 
and eight other witnesses. In the formulary, which precedes the sig- 
natures, the articles are called a " Definitive Treaty." 

Among the documents of Congress, published during the last ses- 
sion, is a letter from the Hon. Hugh L. White, now senator in Con- 
gress, to Mr. John Ross, at present the chief magistrate of the Chero- 
kee nation, in which the writer argues at some length, that the treaty 
of Hopewell is not now in force, on account of its having been abro- 
gated by a subsequent war, and its not being expressly recognized in 
any subsequent treaty. 

Mr. White admits that treaties are not, as a matter of course, abro- 
gated by war ; but he thinks that, in the case before us, such is the 
natural conclusion to be formed, after attending to subsequent treaties, 
I must be permitted to question, whether he would have come to this 
conclusion, if he had seen all the subsequent treaties, and duly con- 
sidered them. 

The following reasons, which have become apparent in the course 
of this investigation, satisfy me that the treaty of Hopewell is still in 
force. 

1. In all the subsequent treaties, there is no intimation, not even 
the most obscure, that this treaty, or any other, had been abrogated, 
annulled, or superseded. 

2. In the second treaty of Philadelphia, 1794, the United States 
give money " to evince their justice" to the Cherokees, 'for relin- 
quishments of land by the treaty of Hopewell and the treaty of Holston.' 
Here both treaties are mentioned in precisely the same manner ; which 
would hardly have been the case, if one of them had been abrogated. 

3. The first article of the third treaty of Tellico, 1805, is in these 
words : " All former treaties, which provide for the maintenance of 
peace and preventing of crimes, are, on this occasion, recognized and 
continued in force." The treaty of Hopewell was a former treaty, 
which was directed almost wholly to the maintenance of peace and the 
preventing of crimes. 

4. In the second treaty negotiated by Gen. Jackson, 1817, it is 
stipulated, that " the treaties heretofore [made] between the Cherokee 
nation and the United States are to continue in full force." The 
phrase " the treaties" means the same as all treaties* 

This is the first treaty made by the United States with either of the 
south-western tribes, or nations. The State of Georgia had, previ- 
ously to the revolutionary war, entered into compacts with the Chero- 
kees, of which notice will be taken, at the proper time. After the 
peace of 1783, and before the adoption of the federal constitution, the 
Congress made treaties with the Indians, in precisely the same man- 
ner as with European nations. If the power to do this was doubted, 

* These reasons were not inserted in the number as originally published. They 
were discovered, as the examination of treaties proceeded. The reader will proba- 
bly think them unanswerable. 



14 



or denied, the doubt, or denial, has never come to my knowledge. 
The treaty of Hopewell was negotiated by commissioners, all°of 
whom, if I mistake not, resided at the south ; and I have never heard 
that any remonstrance was offered by either of the States in the neigh- 
borhood of the Cherokees, on the ground that the Old Congress had 
710 power to agree upon a line of demarkation with the Indians. A 
line was fixed, in the 4th article, securing to the Indians the undis- 
turbed possession of a territory, which appeared on the map to be a 
part of Virginia, the two Carolinas, and Georgia ; the States of Ken- 
tucky, Tennessee, Alabama and Mississippi not having then been 
formed. If this treaty now stood alone, and the relations of the par- 
ties had not been changed by subsequent events, no white man could 
have ' attempted to settle on any of the lands within the Cherokee 
boundary,' even down to the present day, however he might have 
been sustained in his attempt by the constituted authorities of any 
or all of the States situated in the neighborhood of the Cherokees. 
Against such an attempt, the Indians would have been protected by 
the faith of the Confederated Republic. This remark is made simply 
for the sake of drawing the attention of the reader to the inviolability 
of the Indian territory, as strongly implied in the fifth article. 

From the phraseology adopted in two or three passages of the 
treaty, the conclusion seems to be drawn by the present Secretary of 
of War, that treaties with the Cherokees are not binding upon the 
whites; at least, not to the extent of their literal and proper meaning. 
The argument stands in this form. The Cherokees fought on the 
side of the British, in the war of independence. The British were 
beaten ; and therefore the Cherokees were a conquered people. To 
a conquered people the United States gave peace ; and therefore the 
United States are not bound by the very articles which they dictated. 
They allotted a boundary to the Cherokees ; and therefore the United 
States are not under obligation to respect the boundary, which they 
themselves allotted. To refute such conclusions, established by such 
a process of reasoning, is unnecessary. The very statement of the 
argument is enough. 

It is true, that the commissioners of the United States, in several 
treaties made about the same time, express themselves rather haughtily, 
when they declare that they give peace to the Indians. The fact is 
well known, however, that the whites were much more desirous of 
peace than the Cherokees were. The inhabitants of our frontier 
settlements were in constant dread of incursions from the natives of 
the forest. Impoverished as our country was by a seven years' war, 
it would have been impossible to have scoured the vast wilderness 
from the settled country to the Mississippi. Any force which could 
then have been sent, would have fared worse than the army of 
St. Clair did, in a far less dangerous field, nine years afterwards. 

The Cherokees could not have set up for nice verbal critics of the 
English language, as they did not understand a word of it. It is 
questionable whether one Indian interpreter in ten would make any 
difference between give peace., and make peace, or agree to a peace. 
The Cherokees doubtless understood, that the United States were 
desirous that there should be an end of fighting ; but it is incredible 
that they should have thought there was lurking, under the phrase of 



15 



giving peace, any such mysterious implication of superiority on the 
part of the whites, as should ultimately exonerate the superior from 
all obligation to keep faith with his inferior. Least of all could they 
have supposed, that there was a latent power in this phrase, which 
should destroy the validity of all future compacts between the same 
parties, in not one of which the insidious phrase is to be found. 

The phrase to give peace was a favorite one with the Romans, and 
was doubtless copied from them. I think Bonaparte used it also on 
some occasions. But neither the Romans, nor Bonaparte, so far as I 
know, ever soberly contended that a treaty was to be interpreted, 
otherwise than according to the obvious and proper meaning of the 
words, merely because one of the parties assumed rather a haughty 
air, in some few instances of the phraseology. 

As to the word allot, it is said to have been commonly used in the 
southern States as synonymous with fix, or establish. To say that a 
boundary was allotted to the Cherokees, was no more than to say 
that a boundary was established, or agreed upon ; for the boundary is 
not said to have been allotted by the United, Slates. It may have 
been, indeed it must have been, as the whole scope of the treaty 
.shows, allotted by the consent of both parties * 



No. IV. 

Apparent inferiority of the United States to the Chiekasaws— The Cherokees under the pro- 
tection of the United States— Hunting grounds a good designation of land— Proofs of 
equality of rights in the parties — Treaty of Holslon, or second compact with the Chero- 
kees, 1791 — Tide and preamble — The manner in which this treaty was negotiated and 
ratified. 

If our statesmen are about to interpret treaties, on the principle of 
favoring the party which assumed a superiority, they must take care 
lest there should be spme very unexpected consequences. 

In a treaty formed between the United States and the Chiekasaws, 
in the year 1801, and ratified by President Jefferson and the Senate, 
the first article commences thus: "The Mingo, principal men, and 
warriors of the Chickasaw nation of Indians give leave and permission 
to the President of the United States of America to lay out, open, 
and make a convenient wagon road through their land." After stat- 
ing that the road " shall be a highway for the citizens of the United 
States and the Chiekasaws," and that the Chiekasaws ' shall appoint 
two discreet men as guides,' who shall be paid by the United States 
for their services, the article closes thus: " Provided always, That the 
necessary ferries over the water-courses, crossed by the said road, 
shall be held and deemed to be the property of the Chickasaw nation." 

The second article makes a pecuniary compensation to the Chieka- 
saws for " their respectful and friendly attention to the President of 

* The correctness of this criticism on the word allot is abundantly proved, by a 
passage of an act of Congress, which was discovered after this number was written. 
The passage makes the meaning of lands allotted to the Indians to be synonymous 
with lands secured to the Indians. 



16 



the United States of America, and to the request made to them in his 
name, to permit the opening of the road" 

Who is the superior here? Translate these passages faithfully, 
and send them to the Emperor of China, and let him lay the matter 
before his counsellors, who never heard of the United States. They 
will say, in a moment, that the Mingo of the Chickasaws is a monarch, 
who, in his great condescension, has granted the humble request of 
the President, on the condition that the petitioner shall make a pecu- 
niary compensation, and pay tribute, under the name of ferriage, to 
the Chickasaws, as often as any of the President's, people pass through 
the territory of the king of the Chickasaws. 

According to the recent code of national morality, what is to be the 
operation of this Chickasaw treaty? Most undoubtedly, in the first 
place, the Chickasaws may close up the road, the stipulations of the 
treaty to the contrary notwithstanding. Indeed, they must have ex- 
ercised great forbearance already, as they have permitted the road to 
be open tioenty-seven years, solely out of regard to this treaty ; Just 
as Georgia has waited twenty-seven years before taking possession of 
the Cherokee territory, out of complaisance to the engagements of the 
United States, which it would seem, are to be discarded as of no va- 
lidity. 

In the second place, none of the treaties made subsequently by the 
Chickasaws are binding upon them ; and therefore they may reclaim 
all the lands which they have ceded to the United States. Of course, 
the inhabitants of West Tennessee, who now live on fertile lands, 
which were ceded to the whites by the Chickasaws, must immediately 
" remove, if the Chickasaws require it. The reason is plain. No su- 
perior can be bound to an inferior ; but that the Chickasaws are the 
superiors, is evident, as the Secretary of War says in the other case, 
because " the emphatic language" of the treaty tf cannot be mis- 
taken." 

But it may be said that there are other indications in the treaty of 
Hopewell, that the United States assumed a superiority, beside the 
phraseology, in the instances above cited. The question is not, be it 
remembered, whether the United States, at the time of the treaty of 
Hopewell, were a more powerful nation than the Cherokees ; but 
whether, being a more powerful nation, they are on that account 
exempted from the obligation of treaties. 

The Cherokees did, undoubtedly, place themselves under the pro- 
tection of the United States, in the third article. They had formerly | 
been under the protection of the king of Great Britain ; but his power I 
had failed them. It was natural that they should accept proffers of \ 
protection from some other quarter. This is not a new thing in the 
world. From the time of Abraham to the present day, there have been ! 
alliances, offensive and defensive, confederacies, and smaller states re- 
lying for protection upon the plighted faith of larger ones. But what 
is implied in the very idea of protection ? Is it not, that the party 
protected is to have all its rights secure, not only against others, but j 
against the protector also ? If some rights are yielded as the price of 
protection, is it not that other rights may be preserved with the greater 
care and certainty ? 1 

It is said that the United States were to have the sole and exclusive 



17 



right of regulating trade with the Cherokees. True : but this was ex- 
pressly declared to be for the benefit of the Indians, and to save them 
from injustice and oppression. These laudable objects were gained 
to a considerable extent ; and, if the laws of the United States on this 
subject had been always carried into full execution, the condition of 
the Indians would have been rapidly improved, as a consequence of 
this very stipulation. 

It is said that the lands of the Indians are called their " hunting 
grounds ;" and that they could not, therefore, have a permanent inte- 
rest in lands thus described. But how does this appear 1 The treaty 
has no limitation of time, nor is there the slightest intimation that it 
was to become weaker by the lapse of years. As the Indians gained 
their principal support by hunting, it was natural to designate their 
country by the phrase " hunting grounds ;" and this is as good a desig- 
nation, in regard to the validity of a title, as any other phrase that 
could be chosen. It contains the idea of property, and has superadded 
the idea of constant use. 

But to put the matter beyond all question at once, let me refer to 
two treaties made at the same place, by three out of four of the same 
American Commissioners, within six weeks of the date of the Chero- 
kee treaty. In both these documents, "lands" are allotted to the 
Choctaws and Chickasaws " to live and hunt on." These lands were 
secured to the Indians, therefore, so long as any of the race survived 
upon earth. 

Having been occupied some time, in considering the indications of 
superiority, let us look a little at the proofs of equality. I leave to a 
future occasion some remarks upon the words treaty, peace, contract- 
ing parties, &c. which carry with them sundry most important sig- 
nifications. 

The two first articles are strictly reciprocal. Each party is to re- 
store prisoners of war. The articles would be proper, in a treaty 
between France and England. 

The 6th and 7th articles provide, that crimes committed against 
individuals of one party, by individuals of the other, shall be punished 
in the same manner. 

The 8th article has the remarkable provision, that no retaliatory 
measures shall be adopted by either party, unless this treaty shall be 
violated; and even then, before such measures can be adopted, justice 
must have been demanded by the complaining party and refused by 
the other, and " a declaration of hostilities" must have been made. 
Thus it is admitted, as well as in the two first articles, that the Chero- 
kees have the same right to declare war, as other powers of the earth 
have. To declare war and make peace are enumerated, in our own 
declaration of independence, as ' mong the highest attributes of na- 
tional sovereignty. The other attributes there enumerated are to form 
alliances and to establish commerce. It is a curious fact, that every 
one of these attributes was exercised by the Cherokees, in the nego- 
tiation of the treaty of Hopewell. 

The present doctrine is, that the Indians were regarded as a sort 
of non-descript tenants at will, enjoying by permission some imperfect 
privilege of hunting on grounds which really belonged to the United 
States. But who ever heard of tenants at will being solemnly admitted 
3 



18 



to have the right of declaring war upon their landlords 1 These ten- 
ants were also strangely allowed to possess the right of punishing, 
according to their pleasure, any of their landlords, who should " at- 
tempt to settle" upon any lands, which, it is now contended, were 
then the absolute property of said landlords. But I shall have other 
occasion of bringing this interpretation to the test. 

After the treaty of Hopewell, white settlers pushed forward into the 
wilderness in the neighborhood of the Indians; difficulties ' arose ; 
blood was shed ; war was declared ; the new settlements in that quar- 
ter were in a state of great alarm and anxiety. 

In the mean time, the new constitution had gone into operation. 
The treaty-making power, which had been exercised by the Old Con- 
gress, was now confided to the President and Senate of the United 
States. Gen. Washington, who always pursued a magnanimous 
policy towards the Indians, as well as towards other nations, took the 
proper measures to establish a peace. On the 2d of July, 1791, the 
treaty of Holston was made ; and it was afterwards ratified by Presi- 
dent Washington and the Senate.- The title is in these words : 

"A treaty of peace and friendship, made and concluded between the President of 
the United States of America, on the part and behalf of the said States, and the un- 
dersigned chiefs and warriors of the Cherokee nation, on the part and behalf of the 
said nation." 

PREAMBLE. 

" The parties being desirous of establishing permanent peace and friendship be- 
tween the United States and the said Cherokee nation, and the citizens and mem- 
bers thereof, and to remove the causes of war by ascertaining their limits, and 
making other necessary, just, and friendly arrangements ; — the President of the 
United States, by William Blount, Governor of the territory of the United States 
south of the River Ohio, and superintendent of Indian affairs for the Southern Dis- 
trict, who is vested with full powers for these purposes, by and with the advice and 
consent of the Senate of the United States ; and the Cherokee nation, by the under- 
signed chiefs and warriors representing the said nation, have agreed to the following 
articles, namely :" 

I have thought it best to cite the whole title and preamble, that the 
reader may see in what manner the parties to this instrument saw fit 
to describe themselves ; or, more properly, in what manner the pleni- 
potentiary of the United States, with the President and Senate, saw fit 
to describe these parties : for it will not be pretended that the Chero- 
kees reduced the treaty to writing. This is the second treaty, which 
was made with Indians, by the government of the United States, after 
the adoption of the federal constitution. The first was made With the 
Creek nation ; and was executed at New York, August 7th, 1790, by 
Henry Knox, then Secretary of War, as the commissioner of the 
United States, and twenty-four Creek chiefs, in behalf of their nation. 
In comparing these two treaties, it is found, that the title and pream- 
ble of the Cherokee treaty are an exact transcript from the other, ex- 
cept that "Cherokee" is inserted instead of "Creek," and the word 
" kings," before " chiefs and warriors," is omitted. 

All the principal articles of the two treaties are of the same tenor, 
and expressed by the same phraseology. As Governor Blount made 
the Cherokee treaty after the model of the Creek treaty, there can be 
little doubt that he was directed to do so, by the head of the War De- 
partment. It is morally certain, that the Creek treaty was drawn up, 



19 



not only with great care, but with the concentrated wisdom of a cabi- 
net, which is universally admitted, I believe, to have been the ablest 
and the wisest, which our nation has yet enjoyed. General Washing- 
ton was at its head, — always a cautious man, and eminently so in lay- 
ing the foundations of our Union, and entering into new relations. 
This treaty was made under his own eye, at the seat of government, 
and witnessed by distinguished men, some of whom added their offi- 
cial stations to their names. The two first witnesses were " Richard 
Morris, Chief Justice of the State of New York," and " Richard 
Varick, Mayor of the City of New York." 

These treaties were, in due season, ratified by the Senate of the 
United States, at that time composed of men distinguished for their 
ability. Among them was Oliver Ellsworth, afterwards Chief Justice 
of the United States; William Patterson, afterwards an eminent Judge 
of the Supreme Court of the United States; Rufus King, afterwards 
for many years Minister of the United States at the British Court ; 
and William Samuel Johnson, who did not leave behind him in 
America a man of equal learning in the Civil Law and the Law of 
Nations. These four individuals, and six other senators, had been 
members of the convention, which formed the federal constitution ; 
though Mr. Ellsworth did not sign that instrument, having been called 
away before it was completed. He was a most efficient member, 
however, in the various preparatory discussions ; and did much in pro- 
curing the adoption of the constitution, by the State which he had 
represented. 

The reader may fairly conclude, that the document in question is 
not a jumble of words, thrown together without meaning, having no 
object, and easily explained away, as a pompous nullity. On the con- 
trary, it was composed with great care, executed with uncommon 
solemnity, and doubtless ratified with ample consideration. It has, 
therefore, a solid basis, and a substantial meaning. That meaning 
shall be considered in a future number. 



No. V. 

What is a treaty ?— of peace 1 — and friendship? — What is a nation ? — The United States 
estopped — The five first presidents admitted the Cherokees to be a nation — First and 
second articles of the treaty of Holston — Absurdity of the recent pretensions of Georgia. 

Having described the manner in which the first Indian treaty, after 
the organization of our present form of government, was negotiated 
by the cabinet of President Washington, and shown that it was ratified 
by senators not inferior to any of their successors, and who were 
doubtless peculiarly cautious in the first exercise of the treaty-making 
power ; and having ascertained by a minute comparison, that the im- 
portant articles of the treaty of Holston, executed less than a year 
afterwards, are a mere transcript of the first treaty, I proceed now to 
inquire, What is the meaning of the treaty of Hohton ? 

The title and preamble were quoted in my last number. The title 
begins thus : " A treaty of peace and friendship." What is a treaty ? 



20 



It is a compact between independent communities, each party acting 
through the medium of its government. No instrument, which does 
not come within this definition, can be sent to the Senate of the United 
States, to be acted upon as within the scope of the treaty-making 
power. 

If the agents of the United States purchase land for a public object, 
such a purchase is not a treaty. If the State of Virginia, on the ap- 
plication of the United States, cedes a piece of land for a navy yard, 
or a fort, a compact of this sort is not a treaty. If the State of 
Georgia cedes to the United States all its claim to territory enough 
for two large new States, and the United States agree to make 
a compensation therefor, such cession and agreement are not a 
treaty. Accordingly, such negotiations are carried on and completed 
by virtue of laws of the National and State Legislatures. Of course, 
compacts of this kind are never called treaties ; and the idea of send- 
ing them to the Senate of the United States for ratification would be 
preposterous. One of the confederated States is not an independent 
community ; nor can it make a treaty, either with the nation at large, 
or with any foreign power. But the Indian tribes and nations have 
made treaties with the United States during the last forty years, till 
the whole number of treaties thus made far exceeds a hundred, every 
one of which was ratified by the Senate before it became obligatory. 
Every instance of this kind implies that the Indian communities had 
governments of their own ; that the Indians, thus living in commu- 
nities, were not subject to the laws of the United States ; and that 
they had rights and interests distinct from the rights and interests of 
the people of the United States, and, in the fullest sense, public and 
national. All this is in accordance with facts ; and the whole is im- 
plied in the single word treaty. 

Again ; the parties on the banks of the Holston signed a treaty "of 
peace:' It is matter of history that there had been fighting and blood- 
shed. These acts of violence were not denominated a riot, a sedition, 
a rebellion; they constituted a war. The settlement of the difficulty 
was not called a pardon, an amnesty, a suppression of a riot, a convic- 
tion, a punishment ; it was called a peace. Nor is it said here, as in 
the treaty of Hopewell, that the United States " give peace." There 
is, in the title and preamble, every indication of perfect equality be- 
tween the parties. In point of fact, the whites were, at that moment, 
much more desirous of peace than the Cherokees were. 

This is also a treaty of "friendship ;" which implies, that the 
Cherokees were not only a substantive power, capable of making 
peace and declaring war, but that, after the treaty was executed, they 
were expected to remain in the same state. It was not a surrendry of 
their national existence, but the establishment of amicable relations to 
remain ; and, so far as this treaty could operate, the amicable rela- 
tions, thus acknowledged to exist } were to continue through all future 
time. 

Who are the parties to this "treaty of peace and friendship!" 
The President acts in behalf of one of the parties, and " the under- 
signed chiefs and warriors of the Cherokee Nation of Indians, on the 
pari and behalf of said Nation" The Cherokees then are a nation ; 



21 



and the best definition of a nation is, that it is a community living 
under its own lawsT 

A nation may he a power of the first, second, third, or tenth rate. 
It may be very feeble, and totally incompetent to defend its own rights. 
But so long as it has distinct rights and interests, and manages its own 
concerns, it is a substantive power ; and should be respected as such. 
Any other rule of interpretation would make force the only arbiter. 
St. Marino, in Italy, is described in our best gazetteers as "a small but 
independent republic;" and yet it has not half so many people, nor the 
three hundredth part so much Jand, as the Cherokee nation now has. 

It has been said, indeed, that the Indians, being an uncivilized 
people, are not to be ranked among nations. But this is said gratui- 
tously, and without the least shadow of proof. How many treaties 
did Julius Caesar make with savage tribes, who were greatly inferior, 
in every intellectual and moral respect, to the Cherokees of the pre- 
sent day 1 There is as little reason as truth in the objection. Has 
not God endowed every community with some rights 1 and are not 
these rights to be regarded by every honest man and by every fair- 
minded and honorable ruler ? 

But, above all, the objection comes too late. The United States are, 
,as a lawyer would say, estopped. Gen. Washington, with his Cabinet 
and the Senate, pronounced the Cherokees to be a nation. It does 
not appear that a doubt ever crossed the mind of a single individual, 
for nearly forty years, whether this admission were riot perfectly cor- 
rect. Presidents Adams, (the elder,) Jefferson, Madison, and Mon- 
roe, all admitted the Cherokees to be a nation, and treated with them 
as such. The Secretary of War, (now Vice President of the United 
States,) negotiated the last treaty with the Cherokees, and affixed his 
signature to it. In this treaty, as in every -preceding one, the 
Cherokees are admitted to be a nation, and there is not a word in 
any of these solemn instruments, which has the most distant implica- 
tion of the contrary. If the United States are not bound in this case, 
how is it possible that a party should ever be bound by its own admis- 
sions? The truth is, that if our country were bound to France, or 
England, by any stipulation, however mortifying to our pride, or dis- 
advantageous to our interest, and the meaning of the obnoxious clause 
were supported by one fiftieth part of the evidence by which it can be 
proved that the United States have recognized the national character 
of the Cherokees, no lawyer, civilian, or politician even, would risk 
his reputation, by attempting to dispute or evade the meaning. We 
should be obliged to submit to inconveniences resulting from our own 
stipulations, till we could remove them by subsequent negotiations. 
If we have been overreached by the Cherokees in so many successive 
treaties ; if they have had the adroitness to get from us repeated ac- 
knowledgments of their possessing a character and rights, which they 
did not possess ; if General Washington, and a long line of distin- 
guished statesmen, have made incautious admissions ; and if, in this 
way, we have made a bargain which bears hard upon ourselves — still, 
our hands and seals testify against us. We must be more cautious 
the next time. " He that sweareth to his own hurt, and changeth 
not," is declared in Holy Writ to give one proof that he is an upright 
man, and will receive the aprobation of God. In a word, if Wash- 



22 



ington and Knox, Hamilton and Jefferson, compromitted the inte- 
rests of this country, by indiscreet and thoughtless stipulations, we 
must gain wisdom by experience, and appoint more faithful and more 
considerate public agents hereafter. 

Having inquired into the meaning of the title and preamble of the 
treaty of Holston, let me now direct the attention of the reader to its 
provisions : 

" Art. 1. There shall be perpetual peace and friendship between all the citizens 
of the United States of America, and all the individuals composing the whole Chero- 
kee nation of Indians." 

if the " peace and friendship" were to be " perpetual," the future 
continuance of the " Cherokee nation of Indians" for an indefinite 
period, was taken to be a matter beyond all question. It appears from 
this article, as well as from the preamble, that " Indians" may con- 
stitute a " nation." The word tribe, when used to denote a community 
living under its own laivs, is of equal force with the word nation ; and 
in this sense it is to be taken, wherever it occurs in the course of my 
remarks. But the Cherokee nation had been divided, from time im- 
memorial, into seven chins, sometimes called tribes, and the Choctaw 
nation into two such tribes. This fact occasioned some of the pecu- 
liar phraseology in the treaty of Hopewell. As the seven clans, or 
tribes, of the Cherokees were united under one government, they were 
all comprehended under the phrase of " the whole Cherokee nation of 
Indians ;" and the word tribe is not found in the treaty of Holston. 
The word nation is applied to the Cherokees, in this single instrument, 
no less than twenty-seven times ; and always in its large and proper 
sense. 

" Art. 2. The undersigned chiefs and warriors, for themselves and all parts of the 
Cherokee nation, do acknowledge themselves and the said Cherokee nation, to be 
under the protection of the United States of America, and of no other sovereign 
whatsoever ; and they also stipulate that the said Cherokee nation will not hold any 
treaty with any foreign power, individual State, or with individuals of any State." 

I remarked upon the treaty of Hopewell, that it has always been a 
common thing for weak states to rely upon the protection of stronger 
ones. When a weak state acknowledges a superior, it is bound in 
good faith to act in accordance with that acknowledgment ; but it is, 
in all other respects, independent of the superior. In other words, it 
retains all the rights, which it has not surrendered. This is the dic- 
tate of common sense, and is decisively stated by Vattel. 

What is to be understood by the Cherokees being under the pro- 
tection of the United States, will very fully appear in the course of 
this investigation. In the very article just quoted, the Cherokees bind 
themselves not to hold any treaty " with any foreign power," nor with 
any "individual State." This was a very material relinquishment of 
their natural rights; but it was supposed to be counterbalanced by 
various advantages secured to them by the treaty, particularly by the 
solemn guaranty in the seventh article, which will be considered in 
its order. „ . . 

It is now contended by the politicians of Georgia, that the United 
States had no power to make treaties with Indians " living," as they j 
express it, " within the limits of a sovereign and independent State." 
Thus, according to the present doctrine, General Washington and his 



23 



advisers made a solemn compact, which they called a treaty, with cer- 
tain Indians, whom they called the Cherokee nation. In this compact, 
the United States bound the Cherokees not to treat with Georgia. 
Forty years have elapsed without any complaint on the part of Geor- 
gia, in regard to this exercise of the treaty-making power ; but it is 
now found that the Cherokees are tenants at will of Georgia; that 
Georgia is the only community on earth that could treat with the 
Cherokees ; and that they must now be delivered over to her discre- 
tion. The United States then, at the very commencement of our fed- 
eral government, bound the Cherokees hand and foot, and have held 
them bound nearly forty years, and have thus prevented their making 
terms with Georgia, which might doubtless have been easily done at 
the time of the treaty of Holston. Now it is discovered, forsooth, that 
the United States had no power to bind them at all. 

If such an interpretation is, to be endured by an enlightened people 
in the nineteenth century, and if, in consequence of it, the Cherokees 
are to be delivered over, bound and manacled ; if this is to be done in 
the face of day, and before the eyes of all mankind, it must be ex- 
pected that shouts and hisses of shame and opprobrium will be heard 
in every part of the civilized world. Pettifogging is no very honorable 
business, when practised in a twenty shilling court ; but what sort of 
pettifogging would this be ? The Cherokees have fully and honorably 
fulfilled their engagements. They have sold us, at a moderate price, 
three quarters of their country, comprising all the best parts of it. 
They have submitted to a qualified dependence. They have abstained 
from ' holding any treaty with any foreign power, or individual State.' 
And now, when the United States are called upon to fulfil their part 
of the contract, and defend the Cherokees from Georgia, it is gravely 
proposed to say to these oppressed Indians, " We have no power to 
defend you. It is true we promised to do it ; and you confided in our 
promise ; and, in that confidence, made valuable concessions to us. 
But, really, we never had the power to make such a promise." 

Has fraud of this barefaced and most disgraceful character been 
perpetrated in the sanctuary of our dignified Senate, and by means of 
solemn treaties ratified in mockery 1 the effect of which is to dispos- 
sess a "nation" of its hereditary lands and government, and to drive 
the individuals of which it was composed, (who are called in the pre- 
amble already cited, "the citizens and members thereof")— to drive 
away these "citizens" as outcasts and vagabonds'? 

But such an interpretation, so insulting to the Cherokees and to the 
common sense of mankind, and so cruel in its operation, cannot be 
admitted. Washington was neither a usurper, nor an oppressor ; nor 
were Ellsworth and his fellow senators, either novices or cheats. 



No. VI. 

Treaty of Holston continued — Articles of boundary and cession — The nature of a cession — 
Grant of a road — Regulation of trade — Article of guaranty — Importance of this article — 
Nature of a guaranty — Instance of Bonaparte and Switzerland. 

I proceed in the consideration of the treaty of Holston. The third 
article provides, that "the Cherokee nation shall deliver" up "all per- 
sons who are now prisoners, captured by them from any part of the 
United States ;" and " the United States shall restore to the Cbero- 
kees all prisoners now in captivity, whom the citizens of the United 
States have captured from them." A period of about nine months 
was allowed for a compliance with this article. Here the most entire 
reciprocity exists, precisely as it is found, usually, in treaties of peace 
between European powers. 

" Art. 4. The boundary between the citizens of the United State9 and the Cher- 
okee nation is and shall be as follows :" [Here the boundary is described, which 
is, in part, the same with that in the treaty of Hopewell ; but the Cherokee country 
on the northeast is considerably curtailed. Here had been the seat of war during 
the interval between the two treaties. A tract, which is now the central part of 
Tennessee, and which probably contains a population of more than 200,000 souls, 
was still retained by the Cherokees.] 

The article provides that the boundary shall be ascertained and marked, and then 
proceeds thus: 

" And, in order to extinguish forever all claims of the Cherokee nation, or any 
part thereof, to any of the land lying to the right of the line above described, begin- 
ning as aforesaid, at the Currahee mountain, it is hereby agreed that, in addition to 
the consideration heretofore made for the said land, the United States will cause 
certain valuable goods to be immediately delivered to the undersigned chiefs and 
warriors, for the use of their nation ; and the said United States will also cause the 
sum of $1,000 to be paid annually to the said Cherokee nation. And the under- 
signed chiefs and warriors do hereby, for themselves and the Cherokee nation, 
their heirs and descendants, for the consideration above mentioned, release, quit 
claim, relinquish, and cede all the land to the right of the line described, and be- 
ginning as aforesaid." 

One object of the treaty was declared in the preamble to be to 
" ascertain the limits of the Cherokees." In the article just quoted, 
the limits are defined on the north and east ; that is, on those sides 
where the white settlers were approaching the borders of the Chero- 
kee country. On the south and west the Cherokees were limited by 
the country of their Creek and Chickasaw neighbors ; so that there 
would have been no propriety in even mentioning the subject here. 
' At the close of the article, the Cherokee chiefs, " for themselves 
and the whole Cherokee nation, their heirs and descendants, release, 
quit claim, relinquish, and cede" a certain portion of their country ; 
that very country which had been called " hunting grounds" in the 
treaty of Hopewell, and of which, as it is now pretended, the Chero- 
kees were tenants at will. Was it ever before heard, that a tenant at 
will released and ceded land to the rightful owner 1 

The phraseology here used not only implies that the word allotted, 
in the previous treaty, meant no more than that the boundary of the 
Cherokee country was Jixed or defined, by the article in which it was 



25 



used : but, it implies also, in the strongest manner, that the sovereign 
power of the Cherokees over their territory was unquestionable. The 
word " cede " is the most common and operative word, in all trans- 
fers of territory from one nation to another. Unless explained and 
limited, it conveys the right of sovereignty. Thus, in cessions of 
small portions of land to the general government, for navy yards, &c. 
the several States are in the practice of reserving certain rights ; 
such as the right of entering to apprehend criminals, &c. implying 
that the word cede would, ex vi termini, convey to the general govern- 
ment all the rights of sovereignty. But no party can convey what it 
does not possess; and it would have been absurd for the United States 
to ask and accept a cession, without admitting that the Cherokees had 
power to make one. This article expressly declares that the agree- 
ment was entered into, the cessions made, and the compensation 
given " to extinguish forever all claims of the Cherokee nation" to the 
lands thus ceded. The Cherokees are acknowledged, then, to have 
had claims, not cancelled by war, — not swept away by the superior 
force of the United States, — never before surrendered : claims, which the 
solemn sanction of treaties was deemed necessary to extinguish. 

" Art. 5. It is stipulated and agreed that the citizens and inhabitants of the Uni- 
ted States shall have a free and unmolested use of a road from Washington district 
to Mero district, and the navigation of the Tennessee river." 

This is another very curious provision, if we are to believe that the 
Cherokees are merely tenants at will, and the people of the United 
States the rightful owners. But upon the only tenable ground, viz. 
that the Cherokees had a rjerfect title to the soil, with undoubted 
rights of sovereignty over it, the article is intelligible and reasonable. 
The people of the United States wanted a free passage through a par- 
ticular part of the Cherokee territory ; and, as the parties now sus- 
tained amicable relations, such a passage was granted by a treaty 
stipulation. 

"Art. 6. It is agreed on the part of the Cherokees, that the United States shall 
have the sole and exclusive right of regulating their trade." 

By the constitution of the United States it had been provided, that 
Congress should have power to regulate commerce " with the Indian 
tribes." This policy had been pursued in the treaty of Hopewell, 
and was doubtless chosen wisely, and with a view to benefit the Indi- 
ans. It was not binding upon them, however, till they voluntarily 
consented to it. 

" Art. 7. The United States solemnly guaranty to the Cherokee nation all their 
lands not hereby ceded." 

This is the most important article in the treaty. The Cherokees 
had yielded some of their natural rights. They had agreed not to 
treat with any foreign power. They had committed the regulation of 
their trade to the United States. They had admitted the United States 
to participate in the navigation of the Tennessee : and had granted a 
free passage through a certain part of their country to the citizens of 
the United States. They had ceded a portion of their territory. 

On the other hand, the United States engaged to protect the Chero- 
kees, to promote their civilization, as will hereafter be seen, and es- 
4 



26 



pecially, to guaranty the integrity and inviolability of their territory. 
In a world full of outrage, fraud, and violence, it is a great advantage 
for a weak state to obtain the solemn guaranty of a powerful neigh- 
bor, that its rights and sovereignty shall be safe. All this is implied 
by a guaranty. The United States solemnly engaged to preserve and 
defend the Cherokees against all foreign powers, (a colony of Spain 
being then in the neighborhood,) against the States of Georgia and 
North Carolina, against the United Statas, in their federative capacity, 
and against all whites who should threaten to commit aggressions 
upon the Cherokees. _ 

The word guaranty can mean no Less, unless limited by the sub- 
ject or context. If Bonaparte guarantees the integrity of Switzerland, 
he engages to defend and preserve Switzerlandjrom aggression and 
invasion, whether the danger arises from Austria, Prussia, Holland, or 
even France itself. It is the chosen and appropriate word to express 
the utmost security, which can be pledged to one party by the power 
and good faith of another. 

Upon the guaranty of the United States the Cherokees have relied, 
with unshaken constancy, since the year 1791. Within a few months 
their confidence has been shaken ; and they are now in a state of 
great solicitude and anxiety. It remains to be seen whether a treaty 
will bind the United States to a weak and dependent ally, or whether 
force is to be the only arbiter in the case. 



No. VII. 

Treaty of Holston continued — Further remarks on the guaranty — Statement of parallel 
cases — Whether the world can be made to receive the modern interpretation — The 
Cherokees would never have made a peace without this guaranty — We urged the Cher- 
okees to a peace, and called them brothers — Abstract of remaining articles — Delivery 
and punishment of criminals — Proffered aid in civilization. 

In the article of guaranty, which was the subject of discussion in 
my last number, the country of the Cherokee nation is called " their 
lands ;" an expression utterly at variance with the notion that the 
lands belonged to the whites. Indeed, the recent interpretation of 
our compacts with the Indians, does great violence to the ordinary rules 
of language. The seventh article is short, and will bear repeating. — 
It reads thus : " The United States SOLEMNLY GUARANTY 
to the Cherokee Nation ALL THEIR LANDS not hereby 
ceded." This seems to be, upon the face of it, a plain sentence. A 
man of moderate information would at least suppose himself to under-: 
stand it. He would not suspect that there was a secret, recondite 
meaning, altogether incompatible with the apparent one. But it 
seems that there was such a meaning. How it was discovered, or by 
whom, the public are not informed. The present Secretary of War, 
however, has lately adopted it, and urged it upon the Cherokees as 
decisive of the whole question at issue. The true meaning of the 
article, then, as explained by a public functionary thirty eight years 
after it was made, would have been accurately expressed as follows : 



27 



<( The United States solemnly declare, iliat the ~Ckerokee Indians have 
no right nor title to any lands within the territory of the United 
States, as fixed by the treaty of 1783 ; hut the United States permit 
the Cherokees to remain on the lands of North Carolina, South Caro- 
lina, and Georgia, ( south and west of the above described boundary,) 
until the said States shall take possession of the same" 

This is the guaranty of the Cherokee country ! It is certainly the 
interpretation of the Secretary of War. How would other treaties 
bear a similar explanation ? The newspapers tell us, that Russia, 
Great Britain, and France, have engaged to guaranty the territory of 
Greece within certain limits. Does this mean that the Greeks are to 
be permitted to live, for the present, on lands which belong to the 
Turks ; but that the Turks, whenever they please, may take possession 
of their own lands, and massacre the Greeks 1 

The Federal Constitution says, (Art. IV. sec. 4,) " The United 
States shall guaranty to every State in this Union,. a Republican form 
of government ■;"■ the true meaning of which may hereafter appear to 
be as follows : " The United States shall permit each State to have a 
Republican form of government for the present ; and until a monar- 
chical form of government shall be imposed upon the people thereof." 

The true meaning of an instrument is that which was- in the minds 
of the parties, at the time of signing. Can the Secretary of War prove 
that General Washington understood the treaty of Holston, according 
to the explanation now given ? Can he prove that the Cherokee chiefs 
and warriors understood it in the same manner ? Surely he would not 
have it signed and ratified in one sense, and carried into effect in a to- 
tally different and opposite sense. He must therefore suppose, that 
the Cherokees intended to admit that they had no right to ' their own 
lands,' and that they stood ready to remove whenever requested. But 
he must allow, that, if this were the meaning of the parties, it was very 
strangely expressed ; and however sincerely he may entertain the newly 
discovered opinion as to the meaning, he may still find it extremely 
difficult to convince the world that he is right. 

Will the Secretary of War guaranty his country against any loss of 
character, as a consequence of adopting his interpretation ? Whom 
will he get for sponsors and compurgators 1 Can he engage that im- 
partial and disinterested men will be satisfied 1 And if they will not, 
or if there is danger that they will not, should he not distrust his own 
conclusions ? And may he not have arrived at them without sufficient 
examination 1 

Not to dwell longer on the words of the article, is it credible that the 
Cherokees would have signed a treaty, in the year 1791, if they had 
been plainly told that the United States did not acknowledge them as 
a separate people ; that they had no rights, nor any lands ; that they 
lived upon their ancient hunting grounds by the permission of the 
whites ; and that, whenever the whites required it, they must remove 
beyond the Mississippi? At that very moment the Cherokees felt 
strong. They and the neighboring tribes could collect a formidable 
force. They had an illimitable forest in which to range, with many 
parts of which they were perfectly acquainted. They could have driven 
in the white settlers, on a line of more than 500 miles in extent. Many 
a Braddock's field, many a St. Clair's defeat, many a battle of Tippa- 



28 



canoe, would have been witnessed, before they could have been ex- 
pelled from their swamps and their mountains, their open woods and 
their impervious cane-brakes, and fairly dislodged from the wide re- 
gions on this side of the Mississippi. 

The people of the United States wanted a peace. We invited the 
Cherokees to lay down their arms. We spoke kindly to them ; called 
them our brothers, at the beginning of every sentence ; treated them 
as equals ; spoke largely of our future kindness and friendship ; and 
shall we now — (I speak to the People of the United States at large) — 
shall we now hesitate to acknowledge the full force of the obligations 
by which we bound ourselves 1 Having, in the days of our weakness, 
and at our own instance, obtained a peace for our own benefit, shall 
we now, merely because no human power can oppose an array of bay- 
onets, set aside the fundamental article, without which no treaty could 
ever have been made 1 

But I must proceed with other parts of the compact. 

Art. 8. If any person, not an Indian, shall settle on any of the Cherokees' lands, 
he shall forfeit the protection of the United States, and the Cherokees may punish 
him. 

Art. 9. No citizen of the United States shall attempt to hunt on the lands of the 
Cherokees ; nor shall any such citizen go into the Cherokee country without a pass- 
port from the governor of a State, or Territory, or such other person as the Presi- 
dent of the United States may authorize to grant the same. 

Arts. 10 and 11. Reciprocal engagements, in regard to the delivery and punish- 
ment of criminals. 

Art. 12. No retaliation or reprisal, in case of injury, till after satisfaction shall 
have been demanded and refused. 

Art. 13. The Cherokees to give notice of any hostile designs. 

Art. 14. " That the Cherokee Nation may be led to a greater degree of civiliza- 
tion, and to become herdsmen and cultivators, instead of remaining in a state of 
hunters, the United States will, from time to time, furnish, gratuitously, the said 
nation with useful implements of husbandry ; and further to assist the said nation in 
*o desirable a pursuit, and at the same time to establish a certain mode of communi- 
cation, the United States will send such and so many persons to reside in said na- 
tion, as they may judge proper, not exceeding four in number, who shall qualify 
themselves to act as interpreters- These persons shall have lands assigned by the 
Cherokees for cultivation for themselves and their successors in office ; but they 
shall be precluded exercising any kind of traffic." 

Art. 15. All animosities to cease, and the treaty to be executed in good faith. 

Art. 16. The treaty to take effect, as soon as ratified, by the President of the 
United States, with the advice and consent of the Senate. 

The Treaty was signed, in behalf of the United States, by William 
Blount, governor of the territory south of the Ohio, and by forty one 
Cherokee chiefs and warriors in behalf of the Cherokee nation ; and 
was afterwards duly ratified by the President and Senate. 

A few remarks seem to be demanded on several of these articles. 
In the ninth, the country of the Cherokees is again called their 
". lands," as it had been twice before ; and the citizens of the United 
States are strictly prohibited from attempting to hunt on said lands ; 
nor could any of our people even enter the country without a passport. 

The tenth article, which is barely mentioned in the preceding ab- 
stract, provides, that " if any Cherokee Indian, or Indians, or person 
residing among them, or who shall take refuge in their nation, shall 
steal a horse from, or commit a robbery, or murder, or other capital 
crime on any citizens or inhabitants of the United States, the Che.ro- 



29 



kee nation shall be bound to deliver him or them up, to be punished 
according to the laws of the United States." 

Thus it appears, that if a party of Cherokees should commit murder 
in the white settlements, upon citizens of the United States, the mur- 
derers could not be pursued a foot within the Cherokee boundary. 
Nay more, if one of our own people should commit murder, or any 
other capital crime, and should take refuge in the Cherokee nation, 
he could not be pursued, however flagrant the case might be, and 
however well known the criminal. The Cherokees must arrest him 
in their own way, and by their own authority ; and they were bound 
by this treaty to do, what by the laws of nations they would not have 
been bound to do, that is, to deliver up criminals for punishment. 
Neither the United States, nor any particular State, had any jurisdic- 
tion over the Cherokee country. But the next article, which my argu- 
ment makes it necessary to quote at large, is, if possible, still more 
decisive of the matter. 

" Art. 11. If any citizen or inhabitant of the United States, or of either of the 
territorial districts of the United States, shall go into any town, settlement, or terri- 
tory belonging to the Cherokees, and shall there commit any crime upon, or tres- 
pass against the person or property of any peaceable and friendly Indian or Indians, 
which, if committed within the jurisdiction of any State, or vnthin the jurisdic- 
tion of either of the said districts, against a citizen or any white inhabitant thereof, 
would be punishable by the laws of such State or district, such offender or offenders 
shall be subject to the same punishment, and shall be proceeded against in the same 
manner as if the offence had been committed within the jurisdiction of the State 
or district to which he or they may belong, against a citizen or white inhabitant 
thereof." 

If there is any meaning in language, it is here irresistibly implied, 
that the Cherokee country, or " territory" is not "within the jurisdic- 
tion of any State, or within the jurisdiction of either of the territorial 
Districts of the United States." Within what jurisdiction is it, then? 
Doubtless within Cherokee jurisdiction ; for this territory is described 
as " belonging to the Cherokees" — one of the most forcible idiomatic 
expressions of our language to designate absolute property. What 
then becomes of the assumption of jurisdiction over the Cherokees by 
the State of Georgia? This question will be easily decided by the 
man who can tell which is the strongest, a treaty of the United States, 
or an act of the Legislature of a State. The treaty says, that the 
Cherokee territory is inviolable ; and that even white renegadoes can- 
not be pursued thither. A recent law of Georgia declares the greater 
part of the Cherokee country to be under the jurisdiction of that 
State; and that the laws of Georgia shall take full effect upon the 
Cherokees within less than a year from the present time. The Con- 
stitution of the United States (Art. VI.) has these words : "All trea- 
ties made under the authority of the United States, shall be the su- 
preme law of the land ; and the judges in every State shall be bound 
thereby, any thing in the laws or Constitution of any State to the con- 
trary notwithstanding." The question of jurisdiction is, therefore, 
easily settled. 

But the full acknowledgment of the national rights of the Chero- 
kees, and of the sacredness of their territory, is not all that the treaty 
contains. The fourteenth article was framed expressly for the pur- 
pose of preserving and 'perpetuating the national existence of the 



30 



Cherokees. That they might " be led to a greater degree of civili- 
zation" appears to have been a favorite design of the American gov- 
ernment. With a view to this object, and that they might " become 
herdsmen and cultivators" the United States proffered some important 
advantages ; and it is by the aid of these very advantages, and by the 
co-operation of faithful teachers and missionaries, that the Cherokees 
have been led to ' a greater degree of civilization ' than any other 
tribe of Indians. So undeniable is this fact, that Georgia has com- 
plained of it: and the government has been blamed for doing those 
things, which the United States were bound to do by the most solemn 
treaty stipulations. 

In a word, the treaty of Holston is a plain document, having a direct 
object. It is consistent with itself. It does not contain the most 
distant implication, that any portion of the human race, except the 
Cherokees themselves, had even the shadow of a claim upon the 
Cherokee territory. It guarantees that territory to its possessors as 
their own absolute property ; accepts grants from them ; and engages 
that the United States shall befriend them, in their future efforts for 
improvement. That the Cherokees have never forfeited the benefit 
of these stipulations will appear in subsequent numbers. 



No. VIII. 

Third treaty, 1792 — Fourth treaty, or second treaty of Philadelphia, 1794— Guaranty of 
another Indian treaty — Fifth treaty, or first treaty of Tellico, 1798 — The guaranty 
repeated, and declared to be forever — The construction of former treaties confirmed — 
No shadow of evidence on the other side. 

On the I7th of February, 1792, an additional article was signed at 
Philadelphia, by Henry Knox, Secretary of War, for the United States, 
and seven- chiefs and warriors in behalf of the Cherokees. As this 
article was the result of a distinct negotiation, held seven months after 
the execution of the Treaty of Holston, it may with propriety be called 
the third treaty between the United States and the Cherokees. It 
provided, that the annuity, given by the fourth article of the next pre- 
vious treaty, should be raised from $1,000 to $1,500 ; and it declared 
that this annual sum was given " in consideration of the relinquish- 
ment of lands," which had been made in that treaty. Of course, the 
United States admitted, that the Cherokees had possessed lands, on 
the outside of the limits established by the treaty, which lands they 
had relinquished to the United States. This additional article was a 
confirmation of the Treaty of Holston, after ample time had elapsed 
for consideration : 

FOURTH TREATY WITH THE CHEROKEES. 

This document was executed at Philadelphia, on the 26th of June, 
1794, by Henry Knox for the United States, and thirteen chiefs for 
the Cherokees. 

After a preamble, which states that the treaty of Holston had "not been fully 
carried into execution by reason of some misunderstandings," and that the parties 
were " desirous of re-establishing peace and friendship," 



31 



Art. 1st declares, " that the said treaty of Holston is, to all intents and purposes, 
in full force, and binding upon the said parties, as well in respect to the boundaries 
therein mentioned, as in all other respects ivhatever." 

Art. 2d stipulates, that the boundaries shall be ascertained and marked, when- 
ever the Cherokees shall have ninety days' notice. 

Art. 3. " The United States, to evince their justice by amply compensating the 
said Cherokee Nation of Indians for relinquishments of land," made 5 by the treaty 
of Hopewell and the treaty of Holston,' agree to give the Cherokees, in lieu of 
former annual payments, $5,000 a year, in goods. 

Art. 4. The Cherokees agree that .$'50 shall be deducted from their annuity for 
every horse stolen by any of their people from the neighboring whites. 

Art. 5. These articles to be permanent additions to the treaty of Holston, as 
soon as ratified. They were soon after ratified by President Washington and the 
Senate. 

It has appeared, in the course of this discussion, that the treaty with 
the Creeks, in 1790, was the basis of the treaty of Holston in 1791. 
This was confirmed in 1792, and again, expressly and solemnly, in 
1794. Thus we have four distinct documents, which received the 
approbation of General Washington, and his cabinet, all agreeing in 
the same principles, and all ratified by the Senate of the United States. 
Several other treaties, in which the same principles were involved, 
were formed with other tribes of Indians, during the same administra- 
tion. In one of these, the United States engage, that they ' will never 
claim the lands reserved to the Indians ;' but that the Indians f shall 
have the free use and enjoyment thereof, until they choose to sell the 
same to the People of the United States.' 

FIFTH TREATY, OR TREATY OF TELLICO. 

This treaty was signed " near Tellico, on Cherokee Ground," Oct. 
2, 1798, by Thomas Butler and George Walton, commissioners of the 
United States, and thirty-nine Cherokee chiefs and warriors, in the 
presence of Silas Dinsmoor, Agent of the United States among the 
Cherokees, and thirteen other witnesses, among whom was the late 
Mr. Charles Hicks, who acted as interpreter on the occasion. 

The treaty begins with a long preamble, stating the reasons why it was necessary 
to make another treaty ; and among the reasons are these two clauses ; viz. " for 
the purpose of doing justice,to the Cherokee JYation of Indians ;" and "in order 
to promote the interest and safety of the said States." 

Art. 1. Peace renewed and declared perpetual. 

Art. 2. The treaties subsisting between the parties in full force ; " together with 
the construction and usage under the respective articles ; and so to continue." 

Art. 3. Limits to remain the same, " where not altered by the present treaty." 

Art. 4. The Cherokee Nation " do hereby relinquish and cede to the United 
States all the lands within the following points and lines :" [Here follows a boun- 
dary, by which a considerable district of land, now in East Tennessee, was ceded to 
the United States.] 

Art. 5. The line described in the treaty to be marked immediately, " which said 
line shall form a part of the boundary between the United States and the Cherokee 
Nation." 

\ Art. 6. In consideration of the preceding cession, the United States agree to pay 
i $5,000 on signing, and $1,000 annually, in addition to previous stipulations of this 
. kind ; " and will continue the GUARANTY of the remainder of their coun- 
i try FOREVER, as made and contained in former treaties." 
I Art. 7. A road granted by " the Cherokee nation," across a small corner of their 
I country, to the citizens of the United States ; and in consideration of this grant, the 
Cherokees are to be permitted " to hunt and take game upon the lands relinquished 
j and ceded by this treaty," until settlements shall make such hunting improper. 
; Art. 8. Due notice to be given of the payment of the annual stipends, and the 



32 



United States to furnish provisions for a reasonable number of Cherokees, who shall 
assemble on these occasions. 

Art. 9. Horses stolen from Cherokees by whites to be paid for by the United 
States ; and horses stolen from whites by Cherokees, to be paid for by a deduction 
from the annuity. 

Art. 10. The Agent of the United States residing among the Cherokees to have 
a sufficient peace of ground allotted "for his temporary use." 

Lastly : this treaty to " be carried into effect on both sides with all good faith." 

The treaty was ratified soon after, by President Adams, and the Senate of the 
United States. 

A few remarks on this treaty may not be improper. 

The words cede, nation, and guaranty, are used in the same senses 
here, as in the treaty of Holston, seven years before. During the 
interval, the government of the United States had been frequently 
employed in making treaties with various tribes of Indians; and it 
is safe to say, that in no period of our national history, was the mean- 
ing of public documents more thoroughly weighed, or the tendency 
and ultimate effect of public measures more seriously considered ; and 
the world may be challenged to produce an example of the adminis- 
tration of a government over an extensive territory, and over a people 
in new, various, and complicated relations, in which fewer mistakes, 
either theoretical or practical, were made, than during the administra- 
tion of General Washington. 

The parties were so careful of the inviolability and integrity of the 
Cherokee territory, that the use of a short road, in the northern extremi- 
ty of that territory, (now in the State of Kentucky,) at a great distance 
from the actual residence of the Cherokees generally, was made the 
ground of a solemn treaty stipulation, and an equivalent was given 
for it. Nay more, the Agent of the United States, residing among 
the Cherokees to distribute the annual payments, to encourage the 
natives in agriculture and manufactures, and to execute the treaties 
in other respects, could not claim even the temporary use of land for 
a garden, or a cow pasture, till this small convenience was allowed 
him by treaty. 

The United States not only acknowledge former treaties, and de- 
clare them to be in full force ; but " the construction and usage under 
their respective articles" are acknowledged, ratified, and declared to 
be the rule of future usage and construction. This is a very remark- 
able provision ; and was doubtless adopted to quiet the Cherokees in 
regard to encroachments feared from the United States. The con- 
struction and usage, under the previous treaties, can be proved at this 
day, by living witnesses, and by public archives, to have tended 
invariably to this one point — that the Cherokees were to retain the 
unimpaired sovereignty of their country ; and that to enable them to 
do this permanently, and in the most effectual manner, they were to 
be taught all the common arts of civilized life. To this course they 
were urged, in the most affectionate manner, by letters written with 
General Washington's own hand. This was pressed upon them at 
every council, and habitually in private, by the Agent of the United 
States, in pursuance of written and verbal instructions from the head 
of the War Department. No historical facts can be proved with more 
absolute certainty than these ; and there is not, it is believed, even i 
the pretence of any evidence to the contrary. 



33 



It appears, moreover, in the preamble to this treaty of Tellico, that 

the " misunderstandings" had arisen, because white settlers had trans- 
gressed the Cherokee boundary, " contrary to the intention of pre- 
vious treaties ;" and that these intruders had been removed by the 
authority of the United States. 

Again : this treaty was negotiated by George Walton, a citizen of 
Georgia, in whom that State reposed great confidence, and by Thomas 
Butler, commanding the troops of the United States, in the State of 
Tennessee ; and it was executed, (to use its own language) " on 
Cherokee ground." 

Thus, the country of the Gherokees is called, as I have already 
shown, " their lands," their " territory," " their nation," and their 
" ground." These epithets are used, not by careless letter writers, 
nor in loose debate ; but in the most solemn instruments, by which 
nations bind themselves to each other. And what is there on the 
other side ? Is it said, or implied, that the Gherokees had a qualified 
title 1 a lease for a term of years 1 a right to hunt, till Georgia should 
want the land for growing corn or cotton ? the privilege of adminis- 
tering their own laws, till Georgia should exercise her rightful juris- 
diction, as a sovereign and independent State ? Is there any thing 
that looks this way ? Not a word ; not a syllable ; not the most dis- 
tant hint. While it is asserted in various forms, and implied more 
than a hundred times over, that the Cherokees were a nation, capable 
of treating with other nations ; that they had a country, which was 
acknowledged to be indisputably their own ; that they had a govern- 
ment to punish criminals and to deliver up renegadoes ; and that they 
were to become a civilized people, permanently attached to the soil ; 
there is not, in all these instruments, a single intimation, or ground of 
plausible argument, to the contrary. 

Lastly, this treaty not only adopts the word "guaranty" from the 
treaty of Holston, but interprets it, (as every civilian in Europe and 
America would have done,) to be applicable to " the remainder of 
their country FOREVER ;" that is, (for the meaning can be no 
less,) the Cherokees were to retain the clear title and unincumbered 
possession of the remainder of their country, which they previously 
had of the whole ; and such title and possession were guaranteed to 
them forever, by the power and good faith of the United States. 



No. IX. 

Guaranty to the Delawares, in 1778 — Ingratitude of not giving- a fair construction to these 
treaties— Sixth compact with the Cherokees, 1803 — Caution in the preservation of their 
rights — Use of the word Father — Second treaty of Tellico, or seventh compact, 1804 — 
Third treaty of Tellico, or eighth compact, 1805. 

The idea of a guaranty, and of a country, as a territory belonging 
to Indians, was not new, even at the period of the treaty of Holston. 

The first treaty, which I have been able to find, made with Indians 
by the United States in their confederated character, was executed at 
5 



34 



Fort Pitt, on the 17th of September, 1778. It contains the following 
very remarkable article : 

" Art. 6. Whereas the enemies of the United States have endeavored, hy every 
artifice in their power, to possess the Indians in general with the opinion that it is 
the design of the States aforesaid to extirpate the Indians, and take possession of 
their country ; — to obviate such false suggestion, the United States do engage to 
guaranty to the aforesaid nation of Delawares and their heirs, all their territorial 
rights in the fullest and most ample manner, as it hath been bounded by former 
treaties, as long as they, the said Delaware nation, shall abide by, and hold fast, the 
chain of friendship now entered into. And it is further agreed on, between the 
contracting parties (should it for the future be found conducive to the mutual inte- 
rest of both parties) to invite any other tribes, who have been friends to the interest 
of the United States, to join the present confederation, and to form a State, whereof 
the Delaware nation shall be the head, and have a representation in Congress ; 
provided nothing contained in this article to be considered as conclusive, until it 
meets with the approbation of Congress." [That it did meet with the approbation 
of Congress is manifest ; because it is now part of a national treaty.] 

The bare suggestion, that the United States designed to take pos- 
session of the Indian country was treated as a slander and a calumny. 
The territorial rights of the Indians were to be respected, and the In- 
dian tribes generally were encouraged with the proposal that they 
might be represented in Congress. The natural implication of this 
last proposal must have been, that the Indians not only had territorial 
rights, but might expect to retain them permanent!)/, in the same man- 
ner as the State of Virginia, or Connecticut, and the other confede- 
rated republics, expected to retain their territorial rights. 

Let it be remembered, that this treaty was made when the United 
States were struggling for independence against the whole force of the 
British empire, and when every accession of strength to the American 
cause, and every subtraction from the power of the enemy, was a mat- 
ter of great importance. Nor should it be forgotten, that other treaties 
formed with the Indians, after the peace with Great Britain were ex- 
tremely desirable to the United States ; that the exhausted treasury of 
the nation could ill afford the expense of s Indian wars ; that the Indians 
had the undisputed possession of boundless forests, on all our frontiers ; 
that many of them had endured public and private injuries, which were 
unavenged and uncompensated ; that the Indian tribes were strong, 
compared with their subsequent decline and their present total want of 
power ; and that the United "States were weak, compared with their 
present gigantic strength. 

Though the treaties were formed in such circumstances, not a single 
article bore hardly, or oppressively, on the United States, or on the 
new settlers. . The Indians claimed nothing unjust or unreasonable. 
The early negotiations wear the aspect of mutual benefit, and appear 
to have been concluded with a desire to secure permanent peace to 
the parties, founded on the acknowledgment of their mutual rights. 

Are the people of the United States unwilling to give a fair, candid, 
and natural construction to a treaty thus made? I might say," Are 
they unwilling to give it the only construction of which it is capable 1 
Are they unwilling to admit a meaning whjch stands out prominently 
upon the very face of the transaction, and which no ingenuity can dis- 
tort, pervert, or evade 1 Will they refuse to be bound by the plainest 
and most solemn engagements, deliberately formed, ratified, acted upon, 
confirmed, ratified again and again by the highest authority of our re- 



35 



public 1 How can it for a moment be apprehended, that the co-ordinate 
branches of our Government — our high, legislative, executive, and ju- 
dicial functionaries, will manifest so total a disregard of every principle 
of public morality ? 

SIXTH COMPACT WITH THE CHEROKEES. 

This instrument was executed on the 20th of October, 1803, by 
Return J. Meigs, Agent of the United States among the Cherokees, 
and by fourteen Cherokee chiefs, beginning with Black Fox, the prin- 
cipal Chief, and ending with the famous James Vann. It was wit- 
nessed by five officers of the U. S. Army, and three other persons, one 
of whom was Charles Hicks, then acting as interpreter. I have called 
it a compact, not a treaty, because it was not sent to the Senate for rati- 
fication. But though it be not technically a treaty, it is morally binding 
upon the United States ; for it has been carried into effect, and the 
United States, particularly the people of Tennessee and Georgia, have 
derived great benefit from it. I have an accurate copy before me. 

" Articles of agreement between the United States and the Cherokee nation, for 
opening a road from the State of Tennessee to the State of Georgia, through the 
Cherokee nation. 

" The Cherokee nation having taken into consideration the request of their Father 
the President of the United States, to grant that a road may be opened through the 
nation, from the State of Tennessee to the State of Georgia, and being desirous to 
evince to their Father, the President, and the good people of the United States, 
their good will and friendly disposition, do hereby agree, that a road may be opened 
from the State of Tennessee to the State of Georgia, with the reservations and pro- 
visions as in the following articles are expressed ; and further to evince to our Fa- 
ther, the President, that we are not influenced by pecuniary motives, we make a 
present of the road to the United States." 

Art. 1. A road granted, sixty feet in width, passing through about 150 miles of 
Cherokee territory, and opening a communication from Augusta, Georgia, to Knox- 
vilie and Nashville, Tennessee. [This has usually been called the Federal Road. 
It has been much travelled ; and great quantities of merchandize, and other valu- 
able property have been transported over it.] It was to be made solely at the ex- 
pense of the United States. The article also provides ; that when the road is open- 
ed, the direction of it shall not be changed ; and that no branch or branches (except 
one which had been described) " shall ever be permitted to be opened without the 
consent of the Cherokee JYaion." 

Art. 2. The Cherokees reserve to themselves the income of the ferries ; and 
specify where the ferries shall be kept. 

Art. 3. Various regulations respecting houses of entertainment, which the 
Cherokees were to establish ; keeping the road in repair, &c. &c. 

Art. 4. No neat cattle from the southern States shall be driven through the 
Cherokee Nation; and when horses are taken through, the number of them shall 
be inserted in the passport of the owner. The Cherokees not to be answerable for 
estrays from among the animals of the whites. 

Art. 5. Officers, civil and military, mail carriers, and some other classes, ex- 
1 empted from toll and ferriage. 

Art. 6. Commissioners to be appointed on each side to survey and mark the road. 

Art. 7. One copy of this agreement to be sent to the Secretary of War, another 
to be left with the principal Cherokee Chief, and a third with the Agent of the » 
United States among the Cherokees. 

The road was opened the following year, and has now been travelled 
for a quarter of a century ; and, during this whole time, has greatly 
facilitated intercourse between different parts of the southern States. 

No reader of the foregoing abstract can be so dull as not to per- 
ceive, that the privilege was granted to the United States, at the 
special instance of the President ; that the Cherokees were extremelv 



36 



cautious not to compromit their territorial rights ; that they made the 
grant from motives of friendship, and a willingness to afford the desired 
accommodation. They guard, in a suitable manner, against vexations 
and liabilities, to which this act of kindness might be thought to 
expose them ; and they reserve the income of the ferries, some of 
which are over considerable rivers, and have been quite profitable. 

The word ' Father' is repeatedly used in this document, to indicate 
the relation which the President of the United States held to the 
Cherokees as their protector from aggression, and as bound to see that 
the treaties with them are carried into effect " with all good faith." 
We had obtruded the word upon them. We had put it into their 
mouths, and it was made the standing pledge, not merely of our 
justice, but of our kindness and generosity towards them. Shall this 
sacred and venerable name be prostituted to purposes of injustice and 
oppression ? For most assuredly it will be deemed oppression, rank 
oppression, if we disown our engagements, forswear our most solemn 
covenants, and then take possession of the lands of our poor neighbors, 
which had been secured to them by the highest guaranty which we 
could make. Nor will the oppression be less odious on account of its 
being accompanied by professions of great benevolence, and the 
promise of a new guaranty. 

SECOND TREATY OF TELLICO, OR SEVENTH NATIONAL COMPACT 
WITH THE CHEROKEES. 

This instrument was executed " in the garrison of Tellico, on 
Cherokee ground," Oct. 24, 1804, by Daniel Smith and Return J. 
Meigs, for the United States, and ten chiefs and warriors for the 
Cherokees, in the presence of five witnesses. 

The preamble says, that certain propositions were made by the 
Commissioners ; that they were considered by the Chiefs ; and that 
" the parties aforesaid have unanimously agreed and stipulated, as is 
definitely expressed in the following articles :" 

Art. 1. " For the considerations hereinafter expressed, the Cherokee nation 
relinquish and cede to the United States a tract of land bounding," &c. [This was 
a small tract, called Watford's Settlement, containing perhaps not more than 100,000 
acres. It was a strip on the frontier between the Cherokees and Georgia.] 

Art. 2. " In consideration of the relinquishment and cession, the United States, 
upon signing the present treaty," shall pay the Cherokees $5,000, in goods or 
money, at the option of the Cherokees, and $1,000 annually, in addition to the 
previous annuities. 

The treaty was ratified by President Jefferson and the Senate. The 
" relinquishment and cession" are of the same nature, and carry with 
them the same implications, as have been described in preceding 
comments. 

THIRD TREATY OF TELLICO, OR EIGHTH COMPACT WITH THE 
CHEROKEES. 

This treaty was executed Oct. 25, 1805, by two Commissioners of 
the United States, and thirty-three Cherokee chiefs and warriors, in the 
presence of ten witnesses. 

Art. 1. " Former treaties recognized and continued in force. 
Art. 2. " The Cherokees quit claim and cede to the United States all the land 
which they [the Cherokees] have heretofore claimed, lying to the north of the 



37 



following boundary line :" [The lands here ceded were of great value, and fell into 
the State of Tennessee, extending east and west near the central parts of that State.] 
Art. 3. " In consideration of the above cession and relinquishment, the United 
States agree to pay immediately" $ 14,000, and $3,000 a year, in addition to pre- 
vious annuities. 

Art. 4. The citizens of the United States to have the free and unmolested use of 
two roads, in addition to those previously established ; one leading from Tennessee 
to Georgia, and the other from Tennessee to the settlements on the Tombigbee. 
These roads to be marked out by men appointed on each side for the purpose. 

Art. 5. This treaty to take effect, " as soon as it is ratified by the President of 
the United States, by and with the advice and consent of the Senate of the same." 

The treaty was ratified by President Jefferson and the Senate. It 
will be observed, that the first article contains an express recognition 
of previous treaties, and pledges the faith of the United States anew 
for the fulfilment of those treaties. 

Several documents of this kind remain to be considered ; but I 
engage myself to jou, Messrs. Editors, and to your readers, that I will 
be as brief as possible, consistently with fidelity to the cause. This is 
a serious matter to the Indians and to the people of the United States. 
It is a matter which must be decided by the great body of the people, 
through their Representatives in Congress. The people must there- 
fore have the means of understanding the subject. 



No. X. 

Fourth treaty of Tellico, or ninth compact, 1805 — Proceedings of the State of Tennessee — 
First treaty of Washington, or tenth compact, 1806 — Settlement of the Chickasaw 
boundary — Treaty of Chickasaw Old Fields, or eleventh compact, 1807 — Second treaty 
of Washington, or twelfth compact, 1816 — Proceedings of South Carolina. 

I would content myself with saying, in reference to the remaining 
treaties, that they are perfectly consistent with the preceding ones, 
were it not, that this sweeping declaration would by no means do 
justice to the cause of the Indians. Several of these treaties contain 
new and striking illustrations of the doctrine that the Cherokees were 
understood to possess their country in full sovereignty. 

FOURTH TREATY OF TELLICO, OR NINTH NATIONAL COMPACT WITH 
THE CHEROKEES. 

This treaty was executed October 27, 1805, at the same place, as 
the one next preceding, and only two days afterwards. It was signed 
by the same commissioners and fourteen of the same Cherokee chiefs. 

The occasion of it is sufficiently explained in the first article : 

Art. 1. " Whereas it has been represented by the one party to the other, that the 
section of land on which the garrison of Southwest Point stands, and which extends 
to Kingston, is likely to be a desirable place for the Assembly of the State of Ten- 
nessee to convene at, (a committee from that body, now in session, having viewed 
the situation,) now, the Cherokees, being possessed of a spirit of conciliation and- 
seeing that this tract is desired for public purposes, and not for individual advan- 
tages, reserving the ferries to themselves, quit claim and cede to the United States 
the said section of land, understanding, at the same time, that the buildings erected 
by the public are to belong to the public, as well as the occupation of the same 



38 



during; the pleasure of the Government. We also cede to the United States the 
first Island in the Tennessee above the mouth of the Clinch." 

Art. 2. The Cherokees grant a mail road to the United States, from Tellico to 
the Tombigbee, " to be laid out by viewers appointed on both sides." 

Art. 3. " In consideration of the above cession and relinquishment, the United 
States agree to pay to the said Cherokee Indians $1,800." 

Art. 4. The treaty to be obligatory when ratified. 

Within a year or two past, as I have already said, the politicians of 
Georgia have contended, that the national government has no au- 
thority to make treaties with Indians living, as they describe the 
matter, "within the limits of a sovereign and independent State." 
The fact is, that the national government is the only competent au- 
thority, under the federal constitution, to enter into any engagements 
with the Indian tribes, which yet retain their organization as separate 
communities, and are acknowledged to possess a title to land within 
definite limits. The uniform practice of the government has accorded 
with these principles ; and Georgia herself has, until very lately, been 
urging Congress and the Executive to hold treaties with the Cherokees. 

How did the State of Tennessee understand this subject ? Let the 
first article of the preceding treaty answer. The legislature of Ten- 
nessee, desirous of obtaining a site for the erection of buildings to ac- 
commodate their state government, sent a committee to view the 
point, at the junction of two beautiful rivers, the Tennessee and the 
Clinch. The boundary, as it then stood, ran very near this point ; 
and the State solicited a square mile for the public object above de- 
scribed. The Cherokees, out of a spirit of conciliation, and for 
#1,600 in money, ceded the section of land, with these remarkable 
reservations, viz : that they were to retain the ferries at the seat of 
government of Tennessee ; and that the grant was made for public 
objects only. Of course, the land would revert to the Cherokees, if 
the seat of government should be removed. As the legislature after- 
wards fixed the seat of government farther west, no public buildings ' 
were erected at this place. Narrower boundaries were subsequently 
established between the United States and the Cherokees ; but the 
ferries were held for a long time, if they are not now held, by as- 
signees of the Cherokees. The treaty was ratified by President Jef- 
ferson and the Senate. 

This whole transaction strongly illustrates several important posi- 
tions, which have been taken, or implied, in the preceding discussion ; 
such as the inviolability of the Cherokee territory ; the right of the 
Cherokees to make or withhold cessions of land, according to their 
pleasure ; their right to impose such restrictions upon their grants as 
they pleased ; and the treaty-making power of the United States being 
the only medium by which a State can get a proper title to Indian 
territory. 

TREATY OF WASHINGTON, OR TENTH COMPACT WITH THE 
CHEROKEES. 

This treaty was negotiated at Washington, January 7, 1S06, by 
Henry Dearborn, Secretary of War, and seventeen Cherokee chiefs 
and warriors. 

The object appears to have been to adjust certain claims of the 
Cherokees and Chickasaws to the same lands, lying between the Ten- 



39 



nessee river and Duck river, in what is now West Tennessee. This 
was done by obtaining a relinquishment to the United States of " all 
the right, title, interest and claim, which the Cherokees, or their na- 
tion, have, or ever had," to the tract described, except that two re- 
servations of small portions of this tract are made by the Cherokees. 

The United States- give 10,000 dollars, and certain, privileges, in 
consideration of the above relinquishment. 

The United States also agree to use their influence to have a cer- 
tain boundary established between the Cherokees and Chickasaws, on 
the south side of the Tennessee river ; " but it is understood by the 
contracting parties, that the United States do not engage to have the 
aforesaid line or boundary established, but only to endeavor to prevail 
on the Chickasaw nation to consent to such a line, as the boundary be- 
tween the two nations. 

Here it is implied, in the strongest manner, that the United States 
had no right to encroach upon Indian territory, or to fix boundaries 
between neighboring tribes ; and that these tribes had, as separate 
nations, the unquestioned power to settle their own boundaries. 

The government of the United States was willing, however, to act 
the part of a mediator in the adjustment of these boundaries. — Ratified 
by Mr. Jefferson and the Senate. 

TREATY OF CHICKASAW OLD FIELDS : OR ELEVENTH COMPACT 
WITH THE CHEROKEES. 

This treaty was executed by Return J. Meigs and James Robertson, 
on the one part, and five Cherokee chiefs on the other, September 11, 
1807. 

It was made to c elucidate' the next preceding treaty, or to ascertain 
the real intention as to the boundary. The Cherokees were to re- 
ceive $2,000 for ' their readiness to place the limits of the land ceded 
out of all doubt ;' and it was stipulated that " the Cherokee hunters, 
as hath been the custom in such cases, may hunt on such ceded tract, 
until by the fulness of settlers, it shall become improper." 

This is the second instance, in which a privilege to hunt on ceded 
lands is granted ; that is, the Cherokees were allowed to exercise the 
same rights of ownership, over land which they had quit claimed and 
sold, and for which they had been paid, as, (if we are to believe 
the present Secretary of War,) they could ever exercise over any of 
their lands, which had not been ceded. I am willing to presume,, 
however, that the Secretary of War, after mature deliberation, will 
abandon a position so utterly untenable. 

This treaty was ratified by Mr. Jefferson in the usual manner. 

SECOND TREATY OF WASHINGTON ; OR TWELFTH COMPACT WITH 
THE CHEROKEES. 

The sole object of this treaty was to obtain for South Carolina a 
small portion of mountainous country, lying at the northwest point of 
that State. It was executed by George Graham, commissioner of the 
United States, and six Cherokee chiefs, March 22, 1816. 

Art. 1. " Whereas the executive of South Carolina has made an application to 
the President of the United States to extinguish the claim of the Cherokee nation 
to that part of their lands, which lie within the boundaries of the said State, as lately 
established and agreed upon, between that State and the State of North Carolina ; 



40 



and as the Cherokee nation is disposed to comply with the wishes of their brothers 
of South Carolina, they have agreed, and do hereby agree to cede to the State of 
South Carolina, and forever quit claim to the tract of country contained within the 
following bounds:" [Here the bounds are described, comprising a tract now in the 
N. Wi corner of South Carolina. The tract was of slnall extent and very little 
value, as it is among the mountains.] 

Art. 2. The United States agree, that the State of South Carolina shall pay the 
Cherokees $5,000 for this grant, in ninety days : " Provided, That the Cherokee 
nation shall have sanctioned the same in Council; and provided also, that the Ex- 
ecutive of the State of South Carolina shall approve of the stipulations contained in 
this article." 

This treaty was ratified by the parties ; viz. President Madison and 
the Senate, and the Cherokee nation in council assembled ; and it 
was doubtless approved by the governor of South Carolina. 

Here is another perfect illustration of the manner in which the 
several States obtained a title to lands, which had remained the 
property of Indians : though the lands appeared, according to the 
maps, to belong to those States. White men, not Indians, made the 
maps. The northwest corner of South Carolina, as that State ap- 
peared on the map, still belonged to the Cherokee Indians. The 
State wished to obtain possession of this little fraction of mountainous 
territory. In a manner perfectly fair and honorable, she applied to 
the general government, requesting that the territory might be pur- 
chased of the rightful owners. She does not say, that the land belongs 
to her; but simply that North Carolina has agreed with South Caro- 
lina, as to the boundary between them, when the land shall have been 
obtained of the Cherokees. She does not pretend that the Cherokees 
are bound, or that their rights are in any degree affected, by agree- 
ments between third parties. This is a correct view of the subject ; 
and quite as applicable to Georgia, as to South Carolina, or any other 
State. 



No. XI. 

Third treaty of Washington, or thirteenth compact, 1816 — Claim of the Cherokees previ- 
ously recognized — The right to navigate rivers in the Cherokee nation obtained by 
treaty— Treaty of the Chickasaw Council House, or fourteenth compact, 1816 — Preface, 
or title, of the treaty — Reasons for the treaty — Abstract of it — Remarks upon it. 

There are four remaining treaties to be examined. Two of them 
were negotiated by the distinguished general, who is now the Chief 
Magistrate of the United States, and one by the distinguished Secre- 
tary of War, who is now Vice President, of the United States. On 
these accounts, as well as from their inherent importance, they are 
worthy of particular attention. 

THIRD TREATY OF WASHINGTON ; OR THIRTEENTH NATIONAL COM- 
PACT WITH THE CHEROKEES. 

This treaty was executed on the same day with the one next pre- 
ceding ; viz. March 22, 1816, and signed by George Graham for the 
United States, and six Cherokee Chiefs, for the Cherokee nation. 
Being on a different subject entirely, it was embodied in a separate 
document. 



41 



Art. 1. The boundary between those parts of the Creek and Cherokee nations, 
which were west of the Coosa river, is agreed upon. The United States having 
obtained, by treaty, the Creek lands west of the Coosa and contiguous to the Chero- 
kees, it became necessary to ascertain and establish the true boundary between 
these nations. In the body of the article it is said, that in the treaty of January, 
1806, (already described as the tenth compact,) "the United States have recog- 
nized a claim on the part of the Cherokee nation to the lands south of the Big 
Bend," &c. 

Art. 2. " It is expressly agreed, on the part of the Cherokee nation, that the 
United States shall have* the right to lay off, open, and have the free use of such 
road, or roads," as shall be needed to open a communication through the Cherokee 
country north of the boundary now fixed. The United States freely to navigate all 
the rivers and waters " within the Cherokee nation." 

Art. 3. " In order to preclude any dispute hereafter, relative to the boundary 
line now established, it is hereby agreed, that the Cherokee nation shall appoint 
two commissioners to accompany the commissioners, already appointed on the 
part of the United States, to run the boundary," &c. 

Art. 4. In order to avoid delay, when the President of the United States shall 
wish, at any time hereafter, to open a new road, under the grant of the second arti- 
cle of this treaty, " the principal chief of the Cherokee nation shall appoint one com- 
missioner to accompany the commissioners appointed by the President" to lay off 
the road. 

Art. 5. The United States agree to pay $25,500 to " individuals of the Chero- 
kee nation," as an indemnity for losses sustained by them, from the march of the 
United States troops " through that nation." 

The treaty was duly ratified by President Madison and the Senate. 

A very few remarks on this document will be sufficient. 

The first- article says, that the United States, in a treaty made ten 
years before, recognized a claim of the Cherokee nation to land south 
of the Big Bend of the Tennessee. What claim ? Doubtless such 
claim as the Cherokees made. But they never made any partial, lim- 
ited, or qualified claim to their lands. They never set up a title as 
tenants for the lives of the existing generation, or tenants for years, or 
tenants at will. They simply, and always, claimed the land as their 
own ; and this claim the United States must have recognized, if they 
recognized any claim at all. 

The fact was, that the article here referred to, as containing a 
recognition of the Cherokee claim, was the one, by which the United 
States engaged to prevail on the Chickasaws to agree upon a certain 
boundary between them and the Cherokees. Thus, the friendly at- 
tempt to fix a boundary between these two Indian nations, was justly 
construed, in a treaty ten years afterwards, to be a recognition of the 
claims of those nations, to the lands on each side of the boundary. 

By article second it is agreed, on the part of the Cherokee nation, 
that the United States shall have the right to lay off roads, in a certain 
part of the nation, and in a prescribed manner. Of course, it must be 
inferred, that the United States had not this right before ; that the 
assent of. the Cherokee nation was necessary to invest the United 
States with the right ; and that it must, even when expressly granted, 
be exercised in the manner, which the treaty prescribed. This article 
speaks, also, of rivers and waters, " within the Cherokee nation and 
stipulates, that the citizens of the United States may freely navigate 
these waters. On looking at the map of the Cherokee country, as it 
then existed, the reader will find, that beside the Hiwassee, the Oosta- 
nawlee, the Coosa, and many smaller streams, that noble river, the 
Tennessee, took a sweep of more than 150 miles through the Chero- 



42 



kee nation. There was good reason to wish for the privilege of navi- 
gating these waters ; but how absurd to resort to the treaty-making 
power for the purpose of obtaining it, if the country really belonged to 
Georgia and the neighboring States. 

By articles 3d and 4th, it appears, that the Cherokee nation had a 
government, which the United States acknowledged, as being always 
in existence, and always competent to transact any national business. 

TREATY OF THE CHICKASAW COUNCIL HOUSE ; OR FOURTEENTH 
COMPACT WITH THE CHEROKEES. 

This document was signed on the 14th of September, 1816. The 
preface is important, and I must cite it at length. 

" To perpetuate peace and friendship between the United States and the Chero- 
kee tribe or nation of Indians, and to remove all future causes of dissension which 
may arise from indefinite territorial boundaries, the President of the United States 
of America, by major-general Andrew Jackson, general David Meriwether, and 
Jesse Franklin, esquires, commissioners plenipotentiary on the one part, and the 
Cherokee delegates on the other, covenant and agree to the following articles and 
conditions, which, when approved by the Cherokee nation, and constitutionally 
ratified by the government of the United States, shaJl be binding on all parties." 

It is always to be presumed, that the President of the United States 
will give a fair and natural construction to all public engagements 
made by the proper authority. There are special reasons, why the 
present incumbent of that high office should respect the document I 
am now considering, and a similar one, which was executed the fol- 
lowing year. 

The reasons for the treaty, assigned in the preface above quoted, 
are good and sufficient reasons ; and such as commend themselves to 
every man's heart and conscience. "To perpetuate peace and friend- 
ship" between neighboring communities is a benevolent work, the 
importance of which much depends on the durability of the relation, 
to which such phraseology is applied ; and to remove all future causes 
of dissension, which may arise from ..." indefinite territorial bounda- 
ries," is a work scarcely less benevolent than the other. This is the 
very language, which would be used on a similar subject, by Russia 
and Prussia, or any two contiguous nations in Europe. 

Further, it appears by the very preface, as well as by the subsequent 
proceedings, that this treaty, though made in the immediate neigh- 
borhood of the Cherokee country, and signed by fifteen chiefs, was 
not considered as binding, till it should be " approved by the Chero- 
kee nation." When this should have been done, and the treaty should 
have been ratified by the government of the United States, it would 
be " binding on all parties." 

It is humiliating to be obliged to prove, that parties to a treaty are 
bound by it. To pretend the contrary is an utter perversion of reason 
and common sense. There are persons, however, to whom express 
covenants seem stronger than unavoidable implications. Such per- 
sons are requested to observe, that major general Andrew Jackson 
and his colleagues did expressly, in so many words, " covenant and 
agree" that the treaty should <£ he binding on all parties." Why is 
it not binding then ? Where is the promised perpetual peace, if the 
weaker party is to be outlawed? Where is the benefit of definite ter- 
ritorial boundaries , if these boundaries are not respected 1 



43 

The following is a brief abstract of the treaty : 
Art. I. ' Peace and friendship established.' 

Art. 2. The western boundary described. It curtailed the Cherokee country on 
the southwest, and gave to the United States a tract of land, now in the State of 
Alabama. 

Art. 8. The Cherokees relinquish and cede the land just mentioned, and, in 
consideration thereof, the United States agree to pay ^5,000 in 60 days, and $6,000 
a year, for ten successive years. 

Art. 4. The line to be plainly marked. 

Art. 5. The Cherokee nation to meet the commissioners of the United States 
at Turke} r -tovvn, on the 2Sth of the same month, " there and then to express their 
approbation, or not, of the articles of this treaty ;" but, if the nation did not assem- 
ble, it would be considered u as a tacit ratification."" 

On this treaty I would observe, that there are several things in it 
worthy of special commendation ; viz : the solicitude to avoid future 
difficulties, the uncommon care manifest in article fourth, (which a 
regard to brevity prevented my citing at large,) to have the line of 
territory made plain ; and the repeated and explicit acknowledgment, 
that the Cherokees were to express their approbation of the treaty, 
before it would be binding. Of course, they were to be dealt with as 
intelligent and moral beings, having rights of their own, and capable 
of judging in regard to the preservation of those rights. 

It must be presumed, that the commissioners of the United States 
were at Turkey-town, on the 2Sth of September, the day appointed 
for the ratification ; but whether the Cherokees were dilatory in as- 
sembling, or whether strong arguments were necessary to obtain their 
consent, does not appear. Six days afterwards the transaction was 
closed, as is proved by the following certificate : 

" Ratified at Turkey-town, by the whole Cherokee nation in council assembled. 
In testimony whereof, the subscribing commissioners of the United States, and the 
undersigned chiefs and warriors of the Cherokee nation, have hereto set their hands 
and seals, this fourth day of October, in the year of our Lord one thousand eight 
hundred and sixteen." 

Signed, Andrew Jackson - , 

D. Meriwether, and 
nine Cherokee chiefs, in the presence of the venerable Col. Meigs, two interpre- 
ters, and major Gadsden, of the United States army, who subscribed as witnesses. 
The treaty was ratified by President Madison and the Senate. 

I close this number by requesting all our public men to meditate 
upon the following words of a very sagacious king : — Remove not the 
old land mark ; and enter not into the fields of the fatherless ; that is, 
of the weak and defenceless ; for their Redeemer is mighty ; He shall 
plead their cause with thee. 



No. XII. 

Treaty of the Cherokee Agency, or fifteenth compact, 1817— Title of the treaty — Long- and 
curious preamble — Abstract of the treaty — Remarks upon it — Singular arrangement of 
Providence — Consideration of Mr. Jefferson's letter — The United States to be bound by 
fear alone — The Cherokees relied on these promises. 

The next treaty is unique in its character ; but all its provisions are 
in accordance with the principles of preceding compacts. It forcibly 
illustrates the change, in the condition and prospects of the Cherokees, 
which had then commenced and has been constantly increasing. 



44 



TREATY OF THE CHEROKEE AGENCY, OR FIFTEENTH COMPACT 
WITH THE CHEROKEES. 

TITLE. 

" Articles of a treaty concluded at the Cherokee Agency within the Cherokee 
nation between major general Andrew Jackson, Joseph McMinn, governor of the 
State of Tennessee, and general David Meriwether, commissioners plenipotentiary 
of the United States of America of the one part, and the chiefs, head men, and 
warriors of the Cherokee nation, east of the Mississippi river, and the chiefs, head 
men, and warriors of the Cherokees on the Arkansas river, and their deputies, John 
D. Chisholm and James Rodgers, duly authorized by the chiefs of the Cherokees on 
the Arkansas river, in open council, by written power of attorney, duly signed and 
executed in presence of Joseph Sevier and William Ware." 

Here surely are parties, commissioners, and agents enough to make 
a treaty ; but the preamble, occupying an octavo page and a half, is 
still more remarkable. It declares, that in the year 1808, a deputa- 
tion from the Upper and Lower Cherokee towns went to Washington; 
that the deputies from the Upper Towns signified to the President 
" their anxious desire to engage in the pursuit -of agricultuie and civ- 
ilized life, in the country they then occupied;" that the nation at large 
did not partake of this desire ; that the upper towns wished, therefore, 
for a division of the country, and the assignment to them of the lands 
on the Hiwassee ; that, " by thus contracting their society within 
narrow limits, they proposed to begin the establishment of fixed laics 
and a regular government; that the deputies from the lower towns 
wished to pursue the hunter life, and with this view to remove across 
the Mississippi ; that the President of the United States, " after ma- 
turely considering the petitions of both parties," wrote to them on the 
9th of January, 1809, as follows : " The United States, my children, 
are the friends of both parties ; and, as far as can be reasonably 
asked, they are willing to satisfy the wishes of both. Those who re- 
main may be assured of our patronage, our aid, and good neighbor- 
hood. Those who wish to remove, are permitted to send an exploring 
party to reconnoitre," &c. That in the same letter, the President 
added — " When the party shall have found a tract of country suiting 
the emigrants, and not claimed by other Indians, we will arrange with 
them and you the exchange of that for a just portion of the country 
they leave, and to a part of which, proportioned to their numbers, 
they have a right and that, in conclusion, he told the emigrating 
Cherokees, that the United States would " still consider them as our 
xhildren," and " always hold them firmly by the hand." 

The preamble states further, that, " the Cherokees relying on the 
promises of the President of the United States, as above recited," 
explored the country west of the Mississippi, made choice of land to 
which no other Indians had a just claim, and were desirous of complet- 
ing the proposed exchange of country : 

" Now, know ye," concludes the preamble, " that the contracting 
parties, to carry into full effect the before recited promises with good 
faith, and to promote a continuation of friendship," &c. &c. " have 
agreed and concluded on the following articles :" 

Art. 1. "-The chiefs, head men, and warriors, of the whole Cherokee nation, 
cede to the United States all the lands lying north and east of the following boun- 
daries :" [The line here described left out a tract of land, which fell into Georgia.] 

Art. 2. The Cherokees also cede certain valuable lands, which fall into the cen- 
tral parts of Tennessee. 



45 



Art. 3. A census to he taken with a view to ascertain the number of emigrants ; 
that is, the number of Cherokees who wish to remove across the Mississippi. 

Art. 4. The annuities to be divided between the remaining and the emigrating 
Cherokees, in proportion to their numbers respectively. 

Art. 5. In consideration of the lands ceded in the first and second articles of this 
treaty, the United States engage to give an equal quantity of land, acre for acre, 
between the Arkansas and White rivers, within certain boundaries mentioned. 

This article closes with the following words : " And it is further stipulated, that 
the treaties heretofore between the Cherokee nation and the United States are to 
continue in full force with both parts of the' nation ; and both parts thereof are en- 
titled to all the immunities and privilege? which the old nation enjoyed, under the 
aforesaid treaties ; the United States reserving the right of establishing factories, a 
military post, and roads within the boundaries above defined." 

Art. 6. The United States to make full compensation for the improvements on 
land within the Cherokee nation, which shall have belonged to the emigrating Cher- 
okees, and to furnish flat-bottomed boats and provisions for their removal. 

Art. 7. Impi ovements on land ceded to the United States to be paid for by the 
United States. There is a provision also, in this article, that the profit of the im- 
provements mentioned in article 6th, shall be applied to the benefit of poor and de- 
crepid Cherokees. 

Art. 8. To every head of an Indian family, residing on the lands ceded by the 
Cherokees in this treaty, shall be allowed a section of land, that is 640 acres, pro- 
vided he wishes to remain on his land thus ceded, and to become a citizen of the 
United States. He shall hold a life estate, with a right of dower to his widow, and 
shall leave the land in fee simple to his children. 

Art. 9. Both parties to enjoy a free navigation of rivers. 

Art. 10. The Cherokee nation cedes to the United States certain small reserva- 
tions, without the present limits of the nation. 
Art. 11. The boundary lines to be marked. 

Art. 12. No whites to enter upon the lands ceded, till the treaty ' ; shall be rati- 
fied by the President and Senate of the United States, and duly promulgated." 
Art. 13. The treaty to be in force as soon as thus ratified. 

The Treaty was signed on the 8th of July, 1817, by Andrew Jackson, and the 
other commissioners, and by thirty-one chiefs and warriors for the Cherokees, who 
expected to remain east of the Mississippi, and fifteen chiefs and warriors for the 
emigrating Cherokees, in the presence of nine witnesses. It was ratified by Presi- 
dent Monroe and the Senate. 

It would seem as though the public affairs of the Cherokees had 
been so ordered by Providence, as to present the very strongest con- 
ceivable exhibition of the obligation of treaties. .It has usually been 
thought, that if a single plain stipulation were made between two na- 
tions, and duly ratified, this would bind the parties. I am now exam- 
ining the fifteenth treaty with the Cherokees, every one of which is 
perfectly consistent with every other ; and they all unite in leading to 
the same conclusion. As if this were not sufficient, the individual 
character and political consistency of our most prominent statesmen, 
not only lend their aid to confirm these national compacts ; but are 
actually personified, as it were, and embodied in the treaties. It may 
be doubted whether there is a similar instance in the annals of man- 
kind. 

Gen. Washington, soon after the organization of our national gov- 
ernment, laid the basis of our Indian relations, in perfect consistency 
with the principles and practice of the early settlers and colonial 
rulers. Mr. Jefferson was a member of his cabinet, and doubtless in- 
timately conversant with these fundamental measures. The five first 
Presidents of the United States made treaties with the Cherokees, all 
resting on the same acknowledged principles. Mr. Jefferson, the 
third President, having pursued the policy of Gen. Washington on this 



46 



subject, with more undeviating zeal than on any other subject what- 
ever—being about to retire from the chief magistracy — and^standing 
mid-way between the era of 1789 and the present year, wrote a fatherly 
letter to the Cherokees, giving them his last political advice. This 
letter is preserved by them in their archives. A negotiation is held 
with them, on their own soil, or, as the title has it, " within the Cher- 
okee nation," under the direction of the fifth President of the United 
States. The letter of Mr. Jefferson is produced and incorporated into 
a treaty. It is therefore adopted by the people of our land, and ap- 
proved as among the national muniments, erected for the defence of 
our weak neighbors. What adds to the singularity of the transaction 
is, that this letter, reaching backward and forward through five admin- 
istrations, is adopted in the fifth, by a negotiator, who is now the sev- 
enth President of the United States ; thus bringing all the weight of 
personal character and political consistency to support as plain stipu- 
lations, as can be found in the English language, or any other. May 
it not be said, then, that the case of the Cherokees has been prepared 
by Providence, that we may show to ourselves and to the world, 
whether engagements can bind us ; or whether the imagined present 
interest of a small portion of the American people will transform itself 
into a Samson, and break national treaties by dozens, and by scores, 
i( as a thread of tow is broken when it toucheth the fire ?" 

If this case should unhappily be decided against the Cherokees, 
(which may Heaven avert!) it will he necessary that foreign nations 
should be well aware, that the People of the United States are ready 
to take the ground of fulfilling their contracts so long only, as they 
can be overawed by physical force ; that we as a nation, are ready to 
avow, that we can be restrained from injustice by fear alone ; not the 
fear of God, which is a most ennobling and purifying principle ; not 
the fear of sacrificing national character, in the estimation of good 
and wise men in every country, and through all future time ; not the 
fear of present shame and public scorn ; but simply, and only, the 
fear of bayonets and cannon. 

But what does the letter of Mr. Jefferson, thus adopted and sanc- 
tioned, and made the mouth-piece of the nation ; what does this letter, 
written after much deliberation and much experience, and on the eve 
of quitting public life, say to the Cherokees? It says, that the United 
States will always regard both branches of the Cherokee nation as 
their children. (A good father, I suppose, does not tell lies to his 
children, nor break his promises to them ; especially promises that 
have been often repeated during the lapse of many years, and in 
which they have confided in making all their arrangements for com- 
fort and usefulness through life.) It says that the Cherokees of the 
Arkansas must not enter upon lands claimed by other Indians, thus 
admitting that the wildest savages have a claim to lands. It says, 
that all the individuals of the Cherokee nation have a right to their 
country ; and, therefore, if a part of the nation surrenders to the Uni- 
ted States its right to lands east of the Mississippi, it must receive 
from the United States a right to lands west of that river. It says, 
that those Cherokees, who choose to remove, may emigrate with the 
good wishes and assistance of the United States, and that those, who 
remain, may be assured, (yes, assured is the word of Mr. Jefferson, 



47 



adopted by Gen. Jackson,) " may be assured of our patronage, our 
aid and good neighborhood." It would be difficult to make any com- 
ments upon this passage, which would add to the impression which it 
cannot fail to make upon every fair and honorable mind. 

The preamble says, that the Cherokees relied upon the promises of 
the President of the United States, and took their measures accord- 
ingly. Why should they not rely upon his promises 1 No President 
of the United States had broken faith with the Indians. But if these 
very promises, and a thousand others, should now be broken, there 
will be an end of reliance on our promises ; and out of tenderness to 
my country, and that we might not be unnecessarily reminded of the 
infamy thus laid up in store for future generations, I could heartily 
wish, that none of our public functionaries may ever hereafter make a 
promise to an Indian. 



No. XIII. 

Fourth treaty of Washington, or sixteenth and last compact, 1819 — Abstract of the treaty- 
Recognition of industrious Cherokees — Permanent school-fund for Indians east of the 
Mississippi — Incorporation of the Intercourse Law into the treaty — Provisions of that 
law — Incidental recognition of the rights of Indians by the Supreme Court of the United 
Stales. 

There is but a single treaty more in this long chain of negotiations. 
It was executed on the 27th of Febuary, 1819, by John C. Calhoun, 
then Secretary of War, for the United States, and by twelve Cherokee 
Commissioners. It may be called 

THE FOURTH TREATY OF WASHINGTON; OR THE SIXTEENTH AND 
LAST NATIONAL COMPACT BETWEEN THE UNITED STATES 
AND THE CHEROKEES. 

The preamble slates, that " the greater part of the Cherokee nation have ex- 
pressed an earnest desire to remain on this side of the Mississippi," and that 
they wish " to commence those measures which they deem necessary to the 
civilization and preservation of their nation ;" they therefore offer to cede to the 
United States a tract of country at least as extensive as the United States will be 
entitled to, according to the provisions of the preceding treaty. 

Art. 1. The Cherokee nation cedes to the United States all its lands, lying north 
and east of the following line : [By this boundary considerable tracts of land were 
ceded, which fell under the jurisdiction of Alabama, Tennessee, and Georgia. 
There was a reservation of about 100,000 acres, lying without the new boundary, 
for a school-fund for the Cherokees.] 'f 

The cession in this article to be in full satisfaction for the lands on the Arkansas, 
given by the United States, in the next preceding treaty. 

Art.' 2. The United States to pay for improvements on the ceded territory; and 
to allow a reservation of 640 acres to each head of a family, who wishes to remain, 
and become a citizen of the United States. 

Art. 8. A reservation of 640 acres to each of 31 persons mentioned by name, 
" all of whom are believed to be persons of industry, and capable of managing their 
property with discretion." 

There were also eight other reservations of 640 acres to each of eight other per- 
sons designated. 

Art. 4. The land reserved for a school-fund to be sold, in the same manner as 
the public lands of the United States, and the proceeds vested by the President of 
the United States, the annual income to be applied " to diffuse the benefits of edu- 
cation among the CkeroMe nation on this side of the Mississippi." 



48 



Art. 5, Boundaries to be run as prescribed in former treaties. Intruders from 
tb.e white settlements to be removed by the United States, and proceeded against 
according to a law of Congress, which was enacted March 30, 1S02. 

Art. 6. Two thirds of the annuities shall hereafter be paid to the Cherokees on 
the east, and one third to those on the west of the Mississippi. 

Art. 7. The citizens of the United States not to enter upon the ceded lands, 
before Jan. 1, 1820. 

Art. 8. This treaty to be binding when ratified. 

The treaty was ratified by President Monroe and the Senate. 

The preamble of this last treaty declared, that the Cherokees, as a 
body, wished to remain upon their ancient territory, with a view to 
their national preservation. The treaty was therefore avowedly made 
with the same view. This is perfectly manifest from the words of the 
document ; and I feel warranted in saying, that the Cherokee chiefs, 
(who consented to the cessions of the first article with great reluctance,) 
were positively and solemnly assured, that the government of the 
United States did not intend to ask them to sell any more land. This 
is implied, indeed, in the preamble, which, after recognizing the de- 
sire of the Cherokees to remain and become civilized, adds, in effect, 
that the cession now made was so extensive, as not to require any 
future cession. 

To about forty individuals specific reservations were made by the 
third article, on the alleged ground, that these individuals were "per- 
sons of industry, capable of managing their property with discretion" 

A very small portion of the Cherokee population resided upon the 
land ceded ; yet from this small portion, (excluding, also, those who 
wished to emigrate from the ceded district to the Arkansas,) about 
forty heads of families were selected, ten years ago, as possessing the 
character above described. It is incontrovertible that the Cherokee 
nation has been improving to the present day. 

The number of industrious persons has been greatly increased, as 
could easily be shown by an induction of particulars, if my limits 
would allow. The words of the treaty are not more plain, therefore, 
nor its principles more just, than its spirit is humane and benevolent. 

The fourth article looks directly at the permanent residence of the 
Cherokees on the territory of their fathers. The lands reserved for a 
school fund have not yet been sold ; but, when the treaty was signed, 
It was supposed they would sell for a great sum of money. Similar 
lands, not far distant, had been sold by the United States at auction, a 
year or two before, at very great prices. The principal tract reserved 
lies on the Tennessee, and, as was thought, would produce so large a 
capital, that the interest would afford the means of education to all the 
children of the Cherokees. What is to be done with this sum ? The 
treaty says, the President of the United States shall vest it as a per- 
manent fund ; and that the annual income is to be applied " to diffuse 
the benefits of education among the Cherokee nation on this side of the 
Mississippi." Here is a permanent fund for a specific object ; and 
that object implies the permanent existence of the Cherokee nation 
eastward of the Mississippi. 

But the provision of the fifth article is still more important to the 
Cherokees. It would seem as if every contrivance was used, which 
human ingenuity could devise, for the purpose of binding the faith and 
constancy of the United States to a just and honorable course with the 



49 



Indians. The integrity of their territory had been guaranteed by 
treaty. Rigorous laws had been enacted for the punishment of in- 
truders. These laws had been executed. But the time might come 
when the laws would be repealed ; and when Congress would, by a 
feeble system of legislation, leave the Cherokees defenceless. In 
order to guard against this species of bad faith, a stipulation is here 
inserted, by which a certain law of the United States, so far as it re- 
lates to the intrusion of whites upon Indian lands, is made a part of 
the treaty. This law, therefore, as it respects the Cherokees, cannot 
be repealed by Congress. It is to be considered in just the same light, 
as if all those parts of it, which relate to intruders, had been literally 
copied into the treaty. Let us then look at some of its provisions. 

By the law of March 30, 1602, it is enacted, (section 2,) that if 
' any citizen of the United States shall cross over, or go within, the 
boundary line, between the United States and the Indians, to hunt, or 
in any wise destroy the game ; or shall drive horses, or cattle, to range 
on any lands allotted or secured, by treaty with the United States, to 
any Indian tribes, he shall forfeit a sum not exceeding $100, or be 
imprisoned not exceeding six months.' 

By section 5th, it is enacted, ' that if any citizen shall make a set- 
tlement on any lands belonging, or secured, or granted, by treaty with 
the United States, to any Indian tribe, or shall survey, or attempt to 
survey y such lands, or designate any of the boundaries by marking trees t 
or otherwise, such offender shall forfeit a sum not exceeding §1,000, 
and suffer imprisonment not exceeding twelve months.' In the same 
section, the President is armed with full power to take such measures, 
and to employ such military force, as he shall judge necessary to re- 
move from Indian lands any person who should " attempt to make a 
settlement thereon.^ 

There are other provisions in the act, all tending to the protection of 
the Indians, and to the preservation of their territory inviolate. This 
general law is now in force, in regard to all the Indians, whose lands 
are secured to them by treaty ; and in regard to the Cherokees, let me 
say again, Congress cannot repeal it; for it is incorporated into a 
solemn national compact, which cannot be altered, or annulled, with- 
out the consent of both parties. 

Within a few months past, a train of surveyors, professing to act 
under the authority of Georgia, have made an irruption into the Chero- 
kee nation, to the great annoyance and alarm of the peaceable inhab- 
itants. These agents of Georgia have not only attempted to survey, 
but have actually surveyed, what they call an old Creek boundary, 
which they have doubtless designated by marking trees, and otherwise. 
Thus have they done the very thing which is forbidden by the 5th sec- 
tion above quoted, under a penalty of $1,000 and twelve months' im- 
prisonment. 

Even if the people of Georgia were right, as to the Creek boundary, 
they are not the proper persons to ascertain the fact. Several treaties 
between the United States and the Cherokees provide, that boundaries 
shall be ascertained by commissioners appointed by the United States, 
accompanied by commissioners appointed by the Cherokee nation. 
Can any good reason be assigned, then, why the President, should not 
direct a prosecution to be commenced against these offenders, who 
7 



50 



have trampled on a law, which is of vital importance to sustain the 
plighted faith of the nation 1 

It is said that the United States can make no treaty with Indians 
living within the limits of a State ; that is, within the limits of what ap- 
pears, by the map, to be one of the United States. I beg leave to make 
a distinction between a State, and the map of a State ; not having yet 
seen it proved, that the engraver of a map has the power of disin- 
heriting a whole people, and delivering their property into the hands of 
others. What did the men, who formed the federal constitution, think 
of the extent of the treaty-making power 1 This appears to me to be 
a pertinent question. It is certainly a question, to which a decisive 
answer can be given. In the first law of Congress, on the subject of 
intercourse with the Indians, which was enacted under our present 
form of government, the fourth section reads as follows : 

" That no sale of lands made by any Indians, or any nation or tribe of Indians, 
within the United States, shall be valid to any person or persons, or to any Slate, 
whether having the right of preemption to such lands or not, unless the same shall 
be made and duly executed at some public treaty, held under the authority of the 
United States." — [Judge Story's edition of U. S. Laws, p. 109.] 

This act was approved, July 22, 1790; only sixteen days before the 
execution of the Creek treaty, in the city of New York, which was 
described in my fourth number. The leading members of Congress 
had been leading members of the Convention, that formed the federal 
constitution. Their exposition of that instrument will not be contro- 
verted by any considerate writer or speaker ; and their decision, in the 
section just quoted, is as positive and peremptory, as can well be im- 
agined. The same provision was continued in subsequent laws, and 
is found, in the law of March 30, 1802, in these words : 

" And be it further enacted, That no purchase, grant, lease, or other conveyance 
of lands, or of any title or claim thereto, from any Indian, or nation, or tribe of In- 
dians, within the bounds of the United States, shall be of any validity, in law or 
equity, unless the same be made by treaty or convention, entered into pursuant to 
the constitution: And it shall be a misdemeanor in any person, not employed under 
the authority of the United States, to negotiate such treaty or convention, directly 
or indirectly to treat with any such Indian nation, or tribe of Indians, for the title 
or purchase of any lands by them held or claimed, punishable by fine, not exceed- 
ing one thousand dollars, and imprisonment, not exceeding twelve months." 

Then follows a proviso, that an agent from a State may be present, and propose 
terms, when commissioners of the United States are treating with the Indians. 

In accordance with the constitution, and with the express provis- 
ions of these national laws, it has been the universal practice to ob- 
tain cessions of Indian lands through the medium of treaties, made 
under the authority of the United States. No fewer than nine of 
these treaties have been duly formed and ratified, in regard to small 
reservations of Indian territory, in the single State of New York. 
That great and powerful State has never yet complained that its rights, 
" as a sovereign and independent State," are in any way endangered 
or abridged, by a faithful adherence to the letter and spirit of the fed- 
eral constitution. 

Thus, Messrs. Editors, I have gone through the long list of treaties 
which our country has made with the Cherokees, and which have re- 
ceived the highest sanction of the legislative and executive branches 
of our government; and which, no doubt, will receive the sanction of 



51 



the judiciary, whenever regularly brought before it. The Judges of 
the Supreme Court of the United States long since declared, inciden- 
tally, that the United States are bound by treaties to the Indians. Mr. 
Justice Johnson said, nineteen years ago, (6 Cranch, p. 147,) " innu- 
merable treaties formed with them, [the Indians,] acknowledge them 
to be an independent people ; and the uniform practice of acknowledg- 
ing their right of soil, and restraining all persons from encroaching 
upon their territory*) makes it unnecessary to insist upon their right of 
soil." Chief Justice Marshall said, that the Indian title " is certainly 
to be respected by all courts, until it be legitimately extinguished." 
This is enough for the perfect defence of the Cherokees, till they volun- 
tarily surrender their country ; such an act on their part being the 
only way in which their title can be legitimately extinguished, so long 
as treaties are the supreme law of the land. 



No. XIV. 

Apology for this prolonged discussion — The people of the United States are jurymen id the 
case ; and must hear it — The Cherokees have refused to treat for ten years — Scruples 
of Georgia about the treaty-making power — Perfect consistency of treaties — No evidence 
to the contrary — Laws, treaties, common sense ; justice, all on the side of the Cherokees. 

It is well known, Messrs. Editors, that a long series of numbers, on 
a single subject, is not apt to be read ; especially if it be of the nature 
of a legal or diplomatic discussion. On this account, I have felt many 
misgivings, in calling upon the public to follow me from one stage to 
another of the negotiations with the Cherokees ; but I have been ad- 
vised, that no part of the preceding numbers could be omitted without 
injury to the cause. If I were arguing this question before the Su- 
preme Court of the United States, simple references would be suffi- 
cient in many cases, where I have felt it necessary to make quotations. 
Yet I think any candid lawyer will admit, that, if he were pleading 
the cause of the Indians before the highest tribunal in our country, he 
would be constrained, by faithfulness to his clients, to dwell much 
longer upon some topics than I have done. Let it be remembered, 
that those members of the American community, who may be justly 
denominated honest and intelligent, are to decide this question ; or at 
least, that they may decide it properly, if they will take the trouble to 
understand it, and will distinctly and loudly express their opinion 
upon it. 

And here let me humbly intreat the good people of the United 
States to take this trouble upon themselves, and not to think it an 
unreasonable task. Let every intelligent reader consider himself a 
juryman in the case ; and let him resolve to bring in such a verdict, 
as he can hereafter regard with complacency. It is not a single man, 
who is on trial, and who may lose his life by the carelessness of the 
jury. Sixty thousand men, women, and children, in one part of the 
United States, are now in constant expectation of being driven away 
from their country, in such a manner as they apprehend will result in 



52 



their present misery and speedy extermination :— sixty thousand human 
beings, to whom the faith of the United States has been pledged in the 
most solemn manner, to be driven away — and yet is it possible that 
the people of the United States should be unwilling to hear their story, 
or even to require silence till their story can be heard 1 

I am encouraged, Messrs. Editors, to proceed, by the assurance, 
which has reached me from different quarters, that our community is 
not callous to every feeling of justice and honor, in relation to the In- 
dians ; that there is a greater disposition to inquire on this subject, 
than on any other now before the public ; and that even my numbers, 
deficient as they are in vivacity, are extensively read with that inte- 
rest, which the magnitude of the cause, in all its bearings, may 
well excite. 

A few remarks upon the treaties with the Cherokees may not 
be useless. 

It is a natural inquiry, Have there been any attempts to treat with 
this nation, since the year 1819? There have been many; and 
although the politicians of Georgia now think that the United States 
have no power to make treaties with the Indians, it is not more than 
one or two years since they were urging Congress to make appropria- 
tions for this object, and pressing the executive to procure the Chero- 
kee country by negotiation. In regard to this matter, they have been 
extremely importunate. Mr. Monroe was teased by them during his 
whole presidency. Their scruples, as to the extent of the treaty- 
making power, are of quite recent origin ; and it is supposed, that 
they would not vehemently remonstrate, if a treaty should now be 
made, the terms of which should compel the Cherokees to take up 
their residence under the shade of the Rocky Mountains. The scru- 
ples about the treaty-making power seem not to have existed, till after 
the Cherokees refused to treat any more. When chiefs and people 
had thus refused, at home and abroad, in their own territory and at 
Washington ; — when they had declared in writing, that there was not 
money enough in our national treasury to purchase an additional foot 
of Cherokee land ; and when these declarations were made with a 
determination and constancy, which left no hope of forming a treaty ; — 
then it was discovered, that the government of the United States pos- 
sessed no power to make a treaty. 

There is a provision in the treaty of Hopewell, (the first treaty in 
the long series,) similar to the proposal made to the Delavvares; viz. 
* That the Cherokees may send a deputy of their choice to Congress.' 
On this provision I omitted to make a remark, in the proper place, 
which may be introduced here. Though the treaty of Hopewell was 
formed under the old confederation, it is not the less binding on that 
account ; and good faith would now require, that the Cherokees 
should be allowed a privilege, as nearly as possible tantamount to 
what would have been the privilege of sending a deputy to the Old 
Congress.* 

Here then we have sixteen treaties with the Cherokees, negotiated 
from 1785 to 1819, ratified by five presidents, all resting on the same 

* Some other remarks, on the treaty of Hopewell, are anticipated in the third 
number, as published in this pamphlet, p. 13, and are therefore omitted here. 



53 



principles, — all consistent with each other, — and all now in force, ex- 
cept that some parts may have become obsolete by subsequent stipula- 
tions on the same subjects. The earlier treaties are repeatedly and 
solemnly recognized by later ones. An official letter of Mr. Jefferson 
is curiously wrought into a treaty, so as to form a connecting bond to 
the whole system. In the last treaty of all, negotiated by the present 
Vice President of the United States, a law of congress is introduced 
for the permanent defence of the Cherokees. 

If we look into other treaties with Indians, from the Delaware treaty 
of 1778, (from which a quotation was made in my ninth number,) to 
the Creek treaty of 1826, the same inviolable territory, the same 
solemn guaranty, the same proffer of friendship and good neighbor- 
hood, will every where be found. So many treaties had been formed 
with Indians previously to 1810, that Mr. Justice Johnson pronounced 
them " innumerable." In none of these treaties is the original title of 
the Indians declared to be defective. In none of them is it said, that 
Indians have not the power of self-government ; or that they must 
come under the government of the several States. In no case, have 
the Indians signed away their inheritance, or compromitted their inde- 
pendence. They have never admitted themselves to be tenants at 
will, or tenants for years. Upon the parchment all stands fair ; and, 
so far as their present engagements extend, they are under no more 
obligation to leave their country, than are the inhabitants of Switzer- 
land to leave their native mountains. 

What is the evidence brought against this mighty mass of treaties? 
Nothing ; absolutely nothing. The Secretary of War merely says, 
that the Cherokees were permitted to remain on the lands of Georgia. 
But where is his authority ? 

If we turn from treaties to the laws of the United States, we find 
the whole system of legislation made in exact accordance with the 
treaties. Nearly all these compacts required appropriations of money. 
When the appropriations were made, the treaties came of course under 
the view of both houses of Congress ; and every such appropriation 
was of course an assent of Congress to the treaty. 

Besides, some of the most important articles of treaties, were taken 
from previously existing laws of Congress. Thus, the 11th article of 
the treaty of Holston, is taken from the treaty made with the Creeks 
at New York, Aug. 7, 1790, where it was inserted verbatim from " an 
act to regulate trade and intercourse with the Indian tribes," which 
was approved by President Washington only sixteen days before. 
This discovery I have just made, and consider it as decisive evidence, 
that the treaty with the Creeks was a measure of great deliberation, 
and that the eminent men of that day labored to make every part of 
their political system harmonize with every other part. 

If we leave both laws and treaties, and look at the conduct of our 
government toward the Indians, we find the declarations of Indian 
agents to have been always directed to this one point : viz. to satisfy 
the Indians, that the government would deal justly and faithfully by 
them, — would perform all its engagements, — and would secure to 
them the permanent possession of their country. They were con- 
stantly urged to become farmers, to educate their children, and form a 
regular government for themselves ; and all this, avowedly, with a 



54 



view to their permanent residence. This was done by Gen. Wash- 
ington — by Mr. Jefferson, by Mr. Madison, by Mr. Monroe, as can be 
shown from published documents ; and probably by the elder Adams 
and his son. 

To treaties, laws, usage, — every public and every private pledge, — 
are to be added the dictates of reason and common sense, and the 
principles of immutable justice. All these stand on the side of the 
Cherokees. Still Georgia demands all the land, which lies within 
what are called her chartered limits. The nature of this demand will 
be examined hereafter. 



No. XV. 

Complaints of Georgia — The question between Georgia and the Cherokees, if no other party 
were concerned — Claims on the ground of civilization — Answer of the Cherokees — Re- 
plication of Georgia — Doctrine of Vattel — It does not apply to this case — VattePs opin- 
ion of the Puritans and Penn — The Cherokees not under the jurisdiction of Georgia. 

It has appeared, in the preceding discussion, that the United 
States have entered into solemn engagements with the Cherokees, by 
which we are bound, as a people, to defend their title and their sove- 
reignty, and to protect them from every species of encroachment and 
aggression. If this be not the obvious meaning of numerous and ex- 
press stipulations, it will be impossible to frame articles in the English 
language, which shall express any meaning whatever. 

But Georgia complains that the government of the United States 
transcended its powers in making these engagements, which are 
therefore to be considered null and void. The reader must bear in 
mind, that this complaint of Georgia is not of long standing. Indeed, 
I am not certain that the legislature Ira's expressed it ; but the leading 
men of that State, and some of the newspapers, are loud in making 
and repeating it. Till very recently, as was mentioned in my last, 
the authorities of Georgia have been urging the United States to make 
treaties with the Indians. 

In order to come to a full understanding of this case, in all its bear- 
ings, let us inquire how the controversy would present itself, if the old 
thirteen States, after obtaining their independence, had never formed 
any system of confederation whatever, and each State were entirely, 
and in all respects, independent of every other State. The whole 
question at issue would then lie between Georgia and the Cherokees. 
Neither South Carolina, nor any other State, would have any right to 
interfere, however oppressively Georgia might conduct herself toward 
the Indians ; unless, indeed, South Carolina, or some other State, had 
made a treaty with the Cherokees, of the nature of an alliance offen- 
sive and defensive. On this supposition, both the allies would have a 
right, by the laws of nations, to speak to Georgia and to be heard. 
But we will suppose, that the Cherokees had made no treaty with any 
community upon earth, and were, as to their mode of living, precisely 
in their present condition ; that is, peaceably engaged in agricultural 



55 



pursuits, and providing for their own families by the labor of their 
own hands. 

In these circumstances, the people of Georgia ask the Cherokees 
to remove ; who, in their turn, demand the reasons of so extraordinary 
a request. And here Jet me say, no good reasons can be given ; no 
reasons, which an honest man would not be ashamed to give, in any 
private transaction. But I will fairly state all the reasons, which 
have come to my knowledge, and would wish the reader to allow them 
every particle of weight to which they are entitled. 

The Georgians say to the Cherokees : " We are a civilized people ; 
you are a vagrant, hunting and savage people. By virtue of this dis- 
tinction, the lands which you occupy, and which your fathers called 
their hunting grounds, belong in reality to us ; and we must take pos- 
session. The writers on the law of nations bear us out in the de- 
mand." 

To such a statement the Cherokees might justly reply : " We are 
not about to dispute as to your being a civilized people, though the 
manner of urging this demand of the houses and lands of your poor 
neighbors, argues neither great modesty nor benevolence. We do not 
profess to be learned in the law of nations ; but we read the Bible, 
and have learned there some plain principles of right and wrong. 
The Governor of the world gave us this country. We are in peacea- 
ble possession. We have never acknowledged any earthly lord, or 
sovereign. If our Creator has taken away our land and given it to 
you, we should like to see some proof of it, beside your own assertion, 
We have read in the book, which we understand you to acknowledge 
as the word of God, that " to oppress a stranger wrongfully" is a mark 
of great national wickedness. 

" But we are not the sort of people that you take us to be. We are 
not vagrants, like some tribes of which we have heard ; nor were our 
fathers. They always had a fixed place of residence. And as to our 
wandering about, we have not the time. We are busy with our 
crops ; and many of us do not go so far as our nearest county court 
once a year, unless called out as jurymen. We do not hunt. Not a 
family within our bounds derives its subsistence from the chase. As 
to our being savages, we appeal to the white men, who travel on our 
turnpike roads, whether they receive any ill treatment. We have a 
legislature and a judiciary, and the judges of our supreme court are 
very rigid in punishing immorality. We have herds of cattle, farms 
and houses, mills and looms, clothing and furniture. We are not 
rich ; but we contrive, by our industry, to provide against hunger and 
nakedness ; and to lay up something comfortable for winter. Besides 
these things, we have schools and places of public worship. Judge 
ye, whether we are such a sort of people, as the writers on the laws of 
nations had in their minds, when they talked of vagrants, hunters, 
and savages.' 5 

To this the Georgians rejoin : " But you had no business to betake 
yourselves to an agricultural life. It is a downright imposition upon 
us. This is the very thing that we complain of. The more you work 
on land, the more unwilling you are to leave it. Just so it is with 
your schools ; they only serve to attach you the more strongly to your 
country. It is all designed to keep us, the people of a sovereign and 



independent State, from the enjoyment of our just rights. We must 
refer you to the law of nations again, which declares that populous 
countries, whose inhabitants live by agriculture, have a right to take 
the lands of hunters and apply them to a better use." 

In answer to this legal argument, the Cherokees have only to say, 
that, even if Vattel had the power, by a flourish of his pen, to dispos- 
sess a nation of its patrimonial inheritance, the present case does not 
come within the limits which he has prescribed. Georgia is not pop- 
ulous. She has many millions of acres of unoccupied land. The 
Cherokees are not an " erratic people," to use the phrase of Vattel ; so 
that neither part of the case answers to the description. 

When Georgia shall have a hundred souls to the square mile ; (and 
her soil is capable of sustaining a larger number than that ;) the Cher- 
okees may have four times as many to the square mile as Georgia now 
contains. 

If any one has the curiosity to read what Vattel has said on this 
subject, he will find it in sections 81 and 209 ; where he will also find 
a commendation of the manner in which the Puritan settlers of New 
England, and the great founder of Pennsylvania, obtained possession 
of the lands of the natives, viz : by the consent of the occupants, and 
not by a reliance on the charters of kings. 

Thus stands the case on the law of nations; and if Vattel were 
admitted as absolute authority, and the Cherokees were left to their 
naked right, undefended by any compact, either with Georgia or the 
United States, they would have nothing to fear. No respectable | 
lawyer, unless he is entirely deranged in his intellect, as a conse- 
quence of violent party feelings, will say that the doctrine of Vattel 
would take the lands of the Cherokees, and give them to Georgia. 

But it is added, that the Cherokees are in the chartered limits of 
Georgia ; and it is triumphantly asked, " Cannot Georgia govern her 
own territory 1 Is she not entitled to her own property V This state- 
ment of the case is a mere begging of the question. It is not admitted | 
that the Cherokees are now, or ever were, in the State of Georgia, in 
any such sense as is implied by the confident tone here assumed. 
They have never acknowledged themselves to be in the State of 
Georgia. The laws of the United States, and the 11th article of the 
treaty of Holston, irresistibly imply, that Indian territory is not within 
the jurisdiction of any State, nor within the jurisdiction of any terri- 
torial district of the United States. It seems, however, that our na- 
tional statute-book is of very light authority, when compared with the 
supposed conclusions of a philosophical writer, whose theories are pro- 
duced as the arbiters of a people's destiny. 

Let me ask here, whence did the Secretary of War derive the power 
of repealing an act of Congress ? This is a plain question ; and the 
people of the United States would like to receive a plain answer. 
Whence did he derive the power to set aside existing treaties? The 
treaties and the laws assume, in the most unequivocal manner, that 
the Cherokees are not under the jurisdiction of Georgia, nor of any 
other State, nor of the United States; that citizens of the United 
States have no right to enter the Indian country, except in accordance 
with treaty stipulations ; that it is a high misdemeanor, punishable by 
fine and imprisonment, for any such citizen to attempt to survey 



57 



Indian lands, or to mark trees upon them ; and that the Indian title 
cannot be extinguished, except by the consent of the Indians, ex- 
pressed by a regular treaty. Yet the Secretary of War seems never 
to have known that any such laws or treaties are in existence. Is he 
not aware of all this ? or does he really think he has power to annul 
treaties and repeal laws, according to his sense of convenience and 
propriety ? 

But this is a digression. Having shown, as it seems to me, that 
Georgia can gain nothing by an appeal to the law of nations, I propose 
to inquire briefly, what Support she can derive from the charter of the 
king of England. 



No. XVI. 

Not even a king can granl what he does not possess — The people of one continent have lib 
right to dispossess the people of another continent — The proper uses of charters — Claims 
of the Pope, and of Queen Elizabeth — Charters of Georgia — Treaty of 1763 between 
England and Spain — Proclamation of George the Third— True meaning of protection* 

The next inquiry will relate to the title conveyed to the first Euro* 
pean settlers of Georgia, by the charter of the British crown. There 
are some people, even in our republican country, who appear to sup- 
pose that there is wonderful virtue in the grant of a king. But is it 
not manifest, on the bare statement of this subject, that not even a 
king can grant what he does not possess ? And how is it possible, 
that he should possess vast tracts of country, which neither he, nor 
any European, had ever seen ; but which were in fact inhabited by 
numerous independent nations, of whose character, rights, or even 
existence, he knew nothing. Many grants to American colonists 
were bounded by lines running west from the Atlantic to the Pacific 
ocean. This was particularly the case with the charters of Georgia. 
Will it be seriously contended, that a royal grant of this kind con- 
ferred any rightful authority to dispossess of their territory the original 
occupants of the soil 1 From such a principle it would follow, that all 
the aboriginal inhabitants might be lawfully driven into the ocean, and 
literally and utterly exterminated at once ; for the European powers, 
by their proclamations and charters, divided the whole American con- 
tinent among themselves. But who will dare to advocate the mon- 
strous doctrine, that the people of a whole continent may be destroyed, 
for the benefit of the people of another continent ? 

It is very easy to understand, that England, France, and Spain, 
would find it convenient to agree upon certain boundaries among 
themselves, so that the subjects of one European power might not 
come into collision with the subjects of another. All this was wise 
and proper ; and when it was accomplished, one of these powers 
might properly grant unoccupied lands to its subjects ; not encroach- 
ing, however, upon the original rights of the natives, or the conven- 
tional rights of Europeans. For these two purposes, viz : The pre- 
vention of strife between new settlers, and the establishment of colo- 
nies upon territory not claimed, or the claims to which had been, or 



58 

might be amicably extinguished — the charters of European govern- 
ments were extremely valuable. Further than this they could not go ; 
and the idea that they could divest strangers of their rights is utterly 
preposterous. 

It is true that the Pope, immediately after the discovery of America, 
issued a bull, by which the kings of Spain were authorized to conquer 
and subdue all the inhabitants of the new world, and bring them into 
the pale of the Catholic church. About a hundred years afterwards, 
Queen Elizabeth, much in the spirit of popery, issued a proclamation, 
by which she directed her subjects to subdue *£he Pagans of this conti- 
nent. But the people of Georgia will not build upon either of these 
foundations. None of the Protestant colonists professed to act upon 
such principles ; and the first settlers from England, as a general 
thing, if not universally, obtained of the natives, by treaty, the privi- 
lege of commencing their settlements. Whenever they afterwards got 
possession of lands by conquest, they did so in consequence of what I 
they considered to be unprovoked wars, to which the Indians were j 
instigated, either by their own fears and jealousies, or by the intrigues 1 
of European nations. It is undeniable, that the English colonists, as j 
a body, and for a hundred and fifty years, disavowed, in principle and 
practice, the doctrine that the aborigines might be driven from their I 
lands because they were an uncivilized people, or because the whites 1 
were more powerful than they. I have not been able to find an assem- j 
bly of legislators, anterior to December 1827, laying down the broad 
principle, that, in this case, power becomes right ; a memorable decla- 
ration, which was made by the legislature of Georgia, in one of the 
paroxysms of the present controversy. 

Let it be fixed in the mind, then, that the charters of British kings, 
however expressed, or whatever might seem to be implied in them, i 
could not divest the Indians of their rights. 

The charters of Georgia are cited in the famous case of Fletcher j 
vs. Peck, (6 Cranch, p. 87,) and it may be presumed, that all the parts | 
which have a bearing on this investigation, are there copied. The 
first charter was granted by Charles the Second, one hundred and 
sixty three years ago, and embraced all that part of North America 
which lies between 29 and 36^- degrees of north latitude ; that is, a 
tract of country more than five hundred English miles broad, extend- 
ing from the Atlantic ocean to the Pacific. It granted the territory, 1 
"together with all ports, harbors, bays, rivers, soil, land, fields, woods, 
lakes, and other rights and privileges therein named." So far as ap- i ! 
pears, the charter said nothing of the native inhabitants. Whether it | 
said any thing in regard to them, or not, is immaterial to the case now ! 
in hand: for as I have already observed, no man will undertake to ' 
maintain the proposition, that the unknown tribes and nations between 
the Atlantic and the Mississippi, and thence westward to Mexico and 
the Pacific, could have their rights and property justly taken from 
them by the signature of the British king, in his palace of Whitehall. j 

The rights derived from this charter were surrendered to the British 
crown in the year 1729. Three years afterwards, George the Second I 
incorporated James Oglethorpe and others, as a charitable society, 
which he styled " The Trustees for establishing the Colony of Geor- I 
gia, in America, with perpetual succession." To this corporation he 



59 



granted all the lands lying between the rivers Savannah and Altamaha, 
and between parallel lines, drawn westward to the Pacific, from the 
heads of said rivers respectively, " with all the soils, grounds, havens, 
bays, mines, minerals, woods, rivers, waters, fishings, jurisdictions, 
franchises, privileges, and preeminences, within the said territories." 

In the year 1752, this charter also was surrendered to the crown. 
A royal government was instituted in 1754, over the colony of Geor- 
gia, which was bounded in the same manner as the tract granted to 
the corporation above described. This tract embraced all the north- 
ern part of the present States of Georgia, Alabama, and Mississippi, 
and extended westward to the South Seas, as the Pacific Ocean was 
then called. 

By the peace of 1763, it was agreed between England and Spain, 
that the Mississippi should be the western boundary of the British col- 
onies. The same year a proclamation was issued by George the 
Third, which, among other things, annexed to the colony of Georgia, 
what is now the southern part of the States of Georgia, Alabama, and 
Mississippi. 

The same proclamation contains the following passage : 

" That it is our royal will and pleasure for the present, as aforesaid, to reserve 
under our sovereignty, protection, and. dominion, for the use of the said Indians, all 
the land and territories not included within the limits of our said three new govern- 
ments, or within the limits of the territory granted to the Hudson's Bay Company, 
as also all the land and territories lying to the westward of the sources of the 
rivers, which fall into the sea from the west arid northwest as aforesaid; and we 
do hereby strictly forbid, on pain of our displeasure, all our loving subjects from 
making any purchases or settlements whatever, or taking possession of any of the 
lands above reserved, without our special leave and license for that purpose first 
obtained." 

The lands now in dispute between Georgia and the Cherokees are 
within the description, which is printed in italics ; and were therefore 
reserved "for the use of the Indians." Thus matters remained, so far 
as the British government was concerned, till the close of the revolu- 
tionary war. By the peace of 1783, the colony of Georgia was ac- 
knowledged to be one of the independent States of America. There 
can be no doubt, that the State of Georgia thenceforward might exer- 
cise, within her proper limits, all that authority, in regard to the In- 
dians, or any other subject, which either the colony of Georgia, or the 
British government might have rightfully exercised within the same 
limits. It is to be understood, however, that any modifications of her 
power, which Georgia afterwards made, either by entering into the old 
confederation, or by adopting the present national constitution, are to 
be duly regarded. 

There are no means within my reach, by which the claims of the 
British government, in regard to the possessions of the Indians, can be 
accurately known. Nor is it of any consequence that they should be 
known. Unless they were founded in reason and justice, they could be 
of no validity ; and in regard to what is founded in reason and justice, 
impartial, disinterested, intelligent men of the present day, can form 
as correct an opinion, as could be formed by the kings of England. 

It is admitted on all hands, and is even strenuously contended for 
by the people of Georgia, that the Indians were considered by the 
British crown, as under its protection. From this claim of the crown, 



60 



it is inferred, that the Indians held their lands by pei*mission of the 
crown. Now I humbly conceive, that here is too large a leap from 
the premises to the conclusion. There is a distinction between afford- 
ing protection and usurping unlimited control over rights and property. 
How many small states remained for hundreds of years under the pro- 
tection of the Roman republic 1 The greatest men in that republic 
were always proud of their good faith to their dependent allies, so long 
as these allies remained faithful. The right of retaining their territory, 
kws, customs, and habits of living was not invaded. How many small 
states are there in Europe, at this moment, possessing a limited sove- 
reignty, and remaining under the protection of larger states, yet exer- 
cising the right of administering their own government, in regard to 
many essential things, as truly as the State of Massachusetts, or South 
Carolina, administers its own government ? 

Would it not be safer to infer, that the Indians were claimed to be 
under the protection of Great Britain because they had important 
rights, which needed protection ? rights which were in danger from 
the encroachments of other European nations, the avarice and fraud 
of speculators, and the hostile machinations of neighboring tribes'? A 
guardian is the acknowledged protector of his ward. Is it sound law, 
therefore, that the guardian is the sole owner of his ward's property ; 
and may set the helpless orphan adrift in the world ? The father is 
the proteetor of his children 5 may he, therefore, oppress them, dis- 
hearten them, and thus prepare them to become outcasts and vaga- 
bonds ? A husband is the protector of his wife : may he, therefore, 
abuse her, repudiate her without cause, and drive her from her own 
house and her patrimonial inheritance ? 

The people of the United State's may conclude, therefore, without I 
the least danger of mistake, that the rights of the Cherokees and Creeks 
were not taken from them by a royal proclamation. The thing is im- 
possible in itself ; and the proclamation does not assert, nor imply, 
that the rights of the Indians were to be disregarded, 



No. XVII, 

Controversies about unappropriated lands — Indian tide always respected-^-First intercourse of 
Oglethorpe with Indians, 1733 — Treaty of Savannah— Abstract of it — Ratified in Lon- 
don — Treaties written by the English — Visit and speech of Tomochichi — Reply of 
George II. — Treaty with the governor of St. Augustine. 

At the close of the revolutionary war, great controversies arose, in 
regard to the disposal which should be made of the unappropriated 
lands lying within the limits of the United States, as defined by the | 
treaty of 1783. Lands were considered as unappropriated, if they had 
not been parcelled out to the whites. If Indians were in possession, 
and living on amicable terms with their white neighbors, it was taken 
for granted that the Indian title must be lawfully extinguished, before 
the whites could be justified in taking possession ; and such an extin- 
guishment of Indian title could be obtained by the consent of the orU 
ginal owners, but in no other way. 



i 



61 



Some of the States contended that the vast tracts lying to the west 
and northwest of the portion inhabited by whites, should be made a 
common fund, and held for the common benefit ; as the whole had 
been secured by the common privations and sacrifices. Other States 
were determined to retain all the territory, which fell within the limits 
described in their original charters. It is not my intention to enter 
at all into a dispute which was put at rest, as a practical matter, by 
various conventional arrangements, made between particular States 
and the United States, from 1781 to 1802. My object in adverting to 
the subject here is, that the reader may be aware of the existence of 
such a controversy. Virginia set an example of public spirit, by re- 
linquishing to the United States her claim to the vast tract northwest 
of the river Ohio ; and it was contended that Georgia ought to relin- 
quish all claim to the lands on her western waters. These relinquish- 
ments, actual or contemplated, were not considered as affecting, or 
as likely to affect, the Indian title. Every cession was subject to 
this title. In other words, every party was considered as bound to 
deal justly with the Indians, and to recognize their territorial rights. 

On the supposition that Georgia had, at the conclusion of the 
American war, an unquestionable right, on every ground of law and 
honor, to all the land within the limits of the king's charter, subject 
only to the Indian title, it would remain to inquire whether her ju- 
risdiction could be fairly and properly extended over the original in- 
habitants, or their country. To me it seems perfectly clear, that 
Georgia could have claimed no jurisdiction at all over the Creeks or 
Cherokees, or over their territory. They were, respectively, a sepa- 
rate people, living under their own laws, upon their own soil. No 
argument, but that of force, could have been adduced, in favor of 
taking away their possessions ; and, if they had been able to defend 
themselves, no argument would ever have been thought of. Could 
the Cherokees now bring into the field a formidable array of bayonets, 
all these arguments about the hunter state would be suffered to repose 
in quiet, with other lumber of the schools. The more savage the 
Indians were, the less inclined the people of Georgia would be to have 
a quarrel with them ; and the more readily would all their territorial 
and national rights be acknowledged. 

The claims of Georgia, which are set forth as being supported by 
the law of nations and the king's charter, have been examined ; and, 
unless I am mistaken, have been shown to be altogether groundless ; 
especially when compared with the strong title of immemorial posses- 
sion. But there is no need of resting the case here, however safe it 
would be here to rest it. 

I therefore proceed to show, that Georgia has, during her whole 
history, till within a very few years, admitted the national character 
and territorial rights of the Creeks and Cherokees ; and that she is 
bound, by numerous public acts performed by her, in the very capacity 
of which she is most proud and jealous, (that of a sovereign and inde- 
pendent State,) for ever to admit and respect the rights of the Chero- 
kees, unless these rights shall hereafter be voluntarily surrendered. 

In the year 1733, James Oglethorpe commenced a settlement on 
the site where Savannah now stands. In his first letter to the corpo- 
ration, whose agent he was, dated February 10th, he says : " A littlo 



62 



Indian nation, the only one within fifty miles, is not only in amity, but i 
desirous to be subjects to his majesty king George, to have lands given 
them among us, and to breed their children at our schools. Their j 
chief and his beloved man, who is the second man in the nation, de- 
sire to be instructed in the Christian religion." It appears from I 
McCall's History of Georgia, (on which I shall rely as authority for 
several succeeding statements,) that this little tribe of Indians, which 
is now extinct, must have received a splendid account of the power 
and benevolence of the British king. How much they understood of 
what was implied in becoming his subjects, cannot be known. They 
were doubtless informed, that the settlers were intending to live in a j 
compact manner, and to have schools and preaching ; and that the | 
Indians would act wisely, if they would be friends to the English, and ji 
live in the same manner. They might naturally, therefore, have been I 
pleased with the notion of taking farms for cultivation, side by side, 1 
with the new settlers. This must have been the meaning of their ' 
having lands given them among the settlers, fos the old English doc- ; 
trine of seisin in fee, and of the fee being in the l£ing, was too meta- !i 
physical an idea to have found a lodgment in their unsophisticated |i 
heads. Indeed, it is quite ridiculous to embarrass this question with i 
the abstract terms, and nice distinctions, which had their origin in the k 
feudal tenures of Europe. The whole philosophy, and the whole 1 
morality of the Indian title, as opposed to the encroachments of the | 
European settlers, might be thus expressed by the Indians : "These 
lands are ours. We had them from our fathers. They are not yours. 
Neither you, nor your fathers, nor your king, ever had them. When 
we consent to your taking them, they will be yours. Till then, they 
belong to us." 

If the little tribe of Indians, who had the possession of the lands at 
the mouth of Savannah River, consented to the settlement of Ogle- 
thorpe, and if their consent was obtained fairly and honorably, (which i 
I am not inclined to question,) then the founder of the State of Georgia 
had a rightful possession. The lawfulness of his possession, as against 
the Indians, was founded altogether upon their consent : while, in 
regard to the whites of South Carolina, lie might justly plead the ( j 
king's charter. ft 

" But as this tribe was inconsiderable," says the historian, " Ogle- ';! 
thorpe judged it expedient to have the other tribes also, to join with j 
them i?i the treaty." So it seems, that Oglethorpe supposed the In- 
dians to be capable of making a treaty, as all the early settlers had l\ 
done, from the discovery of America to that day, and as all his sue- |; 
cessors continued to do, till this same Georgia controversy has, within ,J 
two years past, led to the discovery, that Indians are not capable of 
being treated with. It is morally certain, that the colony of Oglethorpe il 
would have been of short duration, if he had told the Indians, that he, jj 
acting under the king of Great Britain, was the owner of all the lands 
from Savannah to the Altamaha, and thence westward to the other 
side of the world ; and that he could not form any compact with them, ' i 
because they were incapable of making a bargain. Had the whites ' 
distinctly avowed such principles of morality and law, they would f j 
never have established themselves on this continent beyond the reach i 
of their guns. No other refutation of so monstrous a system seems t 



63 



necessary, than its utter impracticability, at the commencement of the 
settlements. In other words, the emigrants from Europe could never 
have become strong enough to throw off all the restraints of justice, 
and disavow the most obvious principles of moral honesty, unless they 
had been, or at least had pretended to be, honest and just during a 
period of two hundred years. 

Oglethorpe, having found an interpreter, summoned a meeting of 
the chiefs to hold a congress with him at Savannah, in order to obtain 
" their consent to the peaceable settlement of the colony." About 
fifty chiefs assembled. Oglethorpe represented to them " the great 
power, wisdom, and wealth of the English nation, and the many ad- 
vantages that would accrue to the Indians in general, from a connex- 
ion and friendship with them ; and, as they had plenty of lands, he 
hoped they would freely resign a share of them to his people, who 
were come to settle among them for their -benefit and instruction." 

This is the first overture of the colonists to the assembled Indians ; 
and it certainly does not look much like demanding the whole country, 
in the name of the king of England. It seems more like a humble 
intreaty for permission to remain, which permission was solicited for 
the purpose of doing good to the natives. The consent of the lords 
of the soil was obtained, and a treaty was made, of which the following 
is an abstract : 

TREATY OF SAVANNAH. 

The preamble recites the authority of Oglethorpe, and says that certain " articles 
of friendship and commerce" were made between him " and the chief men of the 
nation of the Lower Creeks," viz. 

1. The colony engages to let traders carry goods into the " Creek nation " for sale. 

2. The colony engages to make restitution to the Creeks for any injury which 
shall be done to them by white traders, and to punish the offenders according to- 
English law. 

3. If the Creeks should not treat the traders well, the colony will withdraw the 
English trade. 

4. The Creeks say, that they are glad the English have come, and add these 
memorable words : " Though this land belongs to us, (the Lower Creeks,) yet we, 
that we may be instructed by them, (the English,) do consent and agree, that they 
shall make use of, and possess, all those lands which our nation hath not occasion 
to use : Provided always, that they, upon settling every new town, shall set out for 
the use of ourselves, and the people of our nation, such lands as shall be agreed 
upon between their beloved men, and the head men of our nation ; and that these 
lands shall remain to us forever." 

5. The Creeks agree not to do any injury to any of the traders; but if any In- 
dians should transgress this article, the nation will deliver them up, to be punished 
according to English law. 

6. The Creeks agree to apprehend and restore runaway negroes. 

7. The Creeks to give no encouragement to white settlers from other European- 
nations. 

A schedule of prices of articles, exchanged for peltry, was also agreed upon. 

[ This treaty was ratified by the corporation, in the city of London, 

, October IS, 1733. 

So far as appears, Oglethorpe was entirely fair and honest in this 

j whole transaction. The Indians confided in all his statements, and 

I both parties doubtless supposed that the colony would conduce to the 

j permanent advantage of the Indians, and that they and the settlers 

j would live together in friendship, according to the import of the pre- 

, ceding articles. The corporation, in ratifying the treaty, declare that 



64 



they are 8 greatly desirous to maintain an inviolable peace to the 
world's end.' 

It is to be remembered, that all treaties with the Indians were 
written by the English, and that there is no probability that they made 
the expressions stronger against themselves, than they actually were. 
Yet here is a firm and decided protestation of the Creeks, that the 
grants which they made out of friendship, should never be construed 
as an admission that they had no original title. They also took care to 
provide that no new settlement should be made without their consent. 
If the colony intended to rely upon the right of the English king, here 
was the time and place to have asserted it, and to have obtained, if pos- 
sible, the acknowledgment of it from the Indians. 

The principal speaker in this council was a Creek chief, called 
Tomochichi. When Oglethorpe returned to England, in the spring ( 
of 1734, this chief was induced to accompany him. On being intro- 
duced to King George, he made a flourishing speech, in which, how- i 
ever, he does not admit that the king of England is his liege lord and 
sovereign. He gave the king some eagles' feathers, " as a token of 
everlasting peace ;" and concluded by saying, " Whatever words you 
shall say unto me, I will faithfully tell them to all the kings of the 
Creek nation." This is all the allegiance he promised. King George 
expressed his kind regards, gave thanks for the eagles' feathers, and 
concluded by saying, " I shall always be ready to cultivate a good j 
correspondence between the Creeks and my subjects, and shall be 
glad on any occasion to show you marks of my particular friendship." 

Here is no arrogant claim of sovereignty, on the ground of the 
divine right of kings, or any other factitious title. Indeed, the king 
of England implicitly says, that the Creeks are not his subjects. 

When the old chief Tomochichi died, in 1739, he charged his 
people to remember the kindness of the king of England, and hoped 
they would always be friendly to his subjects ; thus making the very 
distinction which the king himself had made. 

In the year 1736, Oglethorpe made a treaty with the Spanish 
Governor of St. Augustine, in which the second article reads as 
follows : " In respect to the nations of free Indians, called Creeks, I 
will use my utmost amicable endeavors, upon any reasonable satisfac- 
tion given them, to prevail with them to abstain from any hostilities 
whatsoever, with the subjects of his Catholic majesty." 

Here it is evident that Oglethorpe saw, as no man in his circum- 
stances could help seeing, that the Creeks were an independent 
people ; and that they must decide for themselves, whether they would 
go to war with the king of Spain, or not. He would advise them, ' 
however, to accept of reasonable satisfaction. 



65 



No. XVIII. 

Second treaty of Georgia with the Indians, 1738— Assertion of rig ht by the Creeks— Stipula- 
tions of Oglethorpe in favor of the Creeks — Claims of Bosomworth — War with Virginia 
and other colonies — Engagements of the king's agent — Treaty of Augusta, or fourth 
compact of Georgia, 1763— Cessions of land in 1773— Treaty of Duet's corner, 1777 — 
Second treaty of Augusta, or sixth compact, 1733 — Objects of these treaties — Post- 
script. 

As Georgia is so strenuous an advocate for State Rights, and pro- 
tests so strongly against any interference on the part of the general 
government, the inquiry how far she has herself acknowledged the 
national character of the Creeks and Cherokees becomes peculiarly 
interesting. 

In 1738, Oglethorpe renewed the treaty of friendship and alliance, 
of which an abstract was given in my last number. The next year he 
took a journey into the wilderness, four hundred miles, as the distance 
was then computed, having been previously invited thither by the 
Creeks of the Coweta towns. There he was received with the great- 
est kindness, and had the opportunity of conferring with deputies of 
the Creeks, Chickasaws, and Cherokees. On the 7th of August, 
another treaty was made between him and " the assembled estates of 
all the Lower Creek nation." This may be called 

THE SECOND TREATY OF GEORGIA WITH THE INDIANS. 

The instrument begins by enumerating the towns and tribes of the 
Creeks, which were represented in the council. The Indians then 
declared, without a dissenting voice, that they adhered to their ancient 
love to the King of Great Britain. They next declared, that all the 
territory from the Savannah to the St. John's, with the intermediate 
islands, and from the St. John's to the bay of Appalache, and, thence 
to the mountains, "doth, by ancient right, belong to the Creek na- 
tion, who have maintained possession of said right against all opposers, 
by war, and can show the heaps of bones of their enemies, slain by 
them in defence of the said lands." They further declared, that they 
were under the protection of the king of England, and would not suf- 
fer the Spaniards, or any other nation but the English, to settle upon 
the territory. They acknowledged that they had granted to the cor- 
poration for which Oglethorpe acted ' the lands from the Savannah to 
the St. John's, and as far back from the coast as the tide flows.' But 
they reserved to themselves three islands, and a small district adjoin- 
ing Savannah. 

Oglethorpe engaged, on his part, that the English should " not take 
I any other lands except those granted by the Creek nation to the trus- 
} tees," and that he would punish any person who should intrude be- 
j yond the limits. He issued a proclamation immediately afterwards, in 
| which he says : " Know ye, that you are not to take up or settle any 
I lands beyond the above limits settled by me with the Creek nation." 
I About the year 1747, a man by the name of Bosomworth, having 
| married a half Indian woman, claimed, in her right, all the lands in 
j the possession of the colony, and artfully induced the Creeks to sup- 

9 



66 



port his claim. He greatly endangered the safety of Savannah, and 
put all the settlements into the greatest alarm. It is not a little curi- 
ous, that he instigated the Indians to assert that Oglethorpe and his 
followers had been merely tenants at will of the Creeks from the be- 
ginning ; applying the same phraseology to the whites, as the legisla- 
ture of Georgia has recently applied to the Cherokees, and with much 
greater plausibility. Although M r . Stephens, then governor of Geor- 
gia, did not admit the claim of Bosomworth and his wife, yet the 
whole affair evinced that it would have been idle and dangerous for 
the settlers to have pretended any other right to the country, than that 
which they had acquired with the consent of the natives.* 

Before 1760, a destructive war existed between the Cherokees and 
the colonists of Virginia, the Carolinas, and Georgia. During the 
contest many cruelties were perpetrated on both sides. The southern 
States were unable to defend themselves, and applied for aid to Gen. 
Amherst, commander of the British forces in America, from whom in- 
dispensable assistance was twice received. A treaty of peace was at 
last made between the Cherokees and the colonists, the terms of 
which I do not find. 

Soon after the close of this war, Capt. Steuart, a sagacious and in- 
telligent man, having been much acquainted with the Indian charac- 
ter, was appointed, by the king, superintendent of Indian affairs for 
all the territory south of Virginia. He convened a general congress 
of Indians at Mobile, where he made a long speech to them, address- 
ing the different tribes in succession. At the close of his speech, he 
said, — 

" Lastly, I inform ycu, that it is the king's order to all his governors and subjects, 
to treat Indians with justice and humanity, and to forbear all encroachments on the 
territories allotted for them. Accordingly, all individuals are prohibited from pur- 
chasing any of your lands ; but as you know that your white brethren cannot feed 
you when you visit them, unless you give them grounds to plant, it is expected 
that you will cede lands to the king for that purpose ; but whenever you shall be 
pleased to surrender any of your territories to his Majesty, it must be done, for 
the future, at a public meeting of your nation, when the governors of the provinces, 
or the superintendent, shall be present, and obtain the consent of all your people. 
The boundaries of your hunting grounds will be accurately fixed, and no settlement 
permitted to be made upon them. As you may be assured that all treaties with you 
will be faithfully kept, so it is expected that you also will be careful strictly to ob- 
serve them." 

It is not necessary to detain the reader with any comments on these 
declarations of the authorized representative of the British crown : 
only let them be compared with the present claims of Georgia. 

* It is a remarkable fact, that Bosomworth induced the Creek chiefs, or rather a 
few of them, to appoint a general agent to transact their business for them, and then 
inveialed this agent to make a deed to him [Bosomworth] of the three reserved islands, 
and the small tract near Savannah. After he had occasioned much trouble to the 
colonial government, he went to England, and commenced a suit on the strength of 
this Indian grant. The litigation continued twelve years, when one of the islands 
was adjudged to him. He retured to America, and he and his wife lived and died 
on the island. From the account of this law-suit, which is given in McCall's His- 
tory of Georgia, it would seem as though the English tribunals not only admitted 
the" validity of Indian title, but of Indian grants to individuals. Some time after- 
wards, the King of England prohibited his subjects from making purchases of land 
from the natives. 



67 



TREATY OF AUGUSTA; OR FOURTH TREATY WITH THE INDIANS, IN 
WHICH GEORGIA WAS A PARTY. 

A great meeting of chiefs of the Catawba, Cherokee, Choctaw, 
Chickasaw, and Creek nations, was convened at Augusta, by invita- 
tion of the colonists, at which were present Gov. Wright, of Georgia, 
Gov. Boone, of South Carolina, Gov. Dobbs, of North Carolina, Lieut. 
Gov. Fauquier, of Virginia, and Capt. Steuart, Superintendent of In- 
dian affairs in the southern department. A treaty was concluded, 
Nov. 10, 1763, by which a cession of lands was made in satisfaction 
of debts, which the Indians had contracted with the English. The 
Cherokees and Creeks united in this grant, which, with what had 
been previously granted, embraced all the sea-coast of Georgia, and so 
far back as to make about one-eighth part of the State, as it now ap- 
pears on the map, or one-twentieth part within the limits, which were 
fixed by the king of England, for his colony of Georgia, after the 
peace with Spain of the same year, and which include Alabama and 
Mississippi. 

Having given an account of this treaty, the historian adds, " I be- 
lieve it may be said of Georgia, that there has been no instance in 
which lands have been forced from the aborigines by conquest ; and 
that, in all cases, the Indians have expressed their entire satisfaction 
at the compensations which have been given them for acquisitions of 
territory." The history was published in 1811. 

I most sincerely desire that the historian, who shall write a hundred 
years hence, may be enabled to say the same thing. It can never be 
truly said, however, that Georgia has not repeatedly, within a few 
years past, threatened to take the lands of Indians by force, and thus 
been chargeable with oppressing them, by creating the most serious 
alarm among them. 

The Creek Indians, not being very skilful casuists in distinguishing 
between rights to real and personal property, interpreted the treaty in 
such a sense as to give them a right to cattle and horses, which they 
found straggling in the woods on their lands. They fairly remon- 
strated with Gov. Wright, however, against the whites permitting their 
stock to stray over the boundaries. Having occasion to use some 
horses, which were found there, the Indians took several. A party of 
the whites, irritated by the loss of their horses, made an irruption into 
the Creek country, re-took the property, remunerated themselves to 
their own satisfaction for other losses, and burned all the houses in the 
towns. The chiefs came to Savannah and complained of this harsh 
treatment ; the governor made them compensation, and peace was re- 
stored. Let the reader decide, which party gave the most evidence of 
savage manners in this transaction. 

In 1773, a convention of Creeks and Cherokees was held at Au- 
gusta, when another tract of land was ceded to the colonists, in pay- 
ment of debts. 

When the revolutionary war broke out, the Indians took the side of 
the mother country. A peace was concluded with the Cherokees by 
the commissioners of Georgia, at Duet's Corner, South Carolina, May 
20,1777. ° y 

Hostilities were afterwards renewed. In May, 1783, the Cherokee 



68 



chiefs were invited to Augusta, and six distinguished men were ap- 
pointed by Georgia to negotiate with them. A treaty was concluded 
on the 30th of that month, establishing the boundary of the Chatahoo- 
chy, which remained the line of demarkation between Georgia and 
the Cherokees till long after the treaty-making power had been given 
to the general government. It is still the boundary in part. 

This treaty was declared to be made between the State of Georgia 
(then, as averred by that instrument, in the seventh year of its inde- 
pendence) and "the head men, warriors, and chiefs of the hordes or 
tribes of Cherokee Indians, in behalf of the said iiation." 

The two objects of the treaty were peace and a definite boundary, 
both of which were obtained on the undisputed basis of the Cherokees 
being a " nation" and having territorial rights. Why is not Georgia 
bound by this treaty, made by herself, in the plenitude of her inde- 
pendence, signed by her governor, and by the late Col. Few, who was 
one of her delegates to form the federal constitution, and by four 
others of her most valued citizens ? Here can be no pretence of 
encroachment on the rights of Georgia by the national authorities of 
the United States. The act is exclusively the act of Georgia, per- 
formed by her own agents, and for her own benefit. 

This treaty, being made on the same principles as the preceding 
ones, is an implicit attestation to the validity of them all, and should 
secure to the Cherokees the peaceable possession of their country. 

P. S. It will be some weeks, Messrs. Editors, before I shall offer 
another communication to your columns. With your permission, I 
propose, then, to examine the following questions : 

How far Georgia is bound by the acts of the general government, 
in pursuance of the treaty-making power 1 

How far the Cherokees are implicated in the compact of 1802 be- 
tween Georgia and the United States? 

How far Georgia has assented to treaties actually made between the 
United States and the Cherokees 1 

And, in conclusion, having considered the demands of justice, I 
shall briefly inquire, whether a benevolent and upright man, with a 
full knowledge of the case, would advise the Cherokees to sell their 
country, and remove beyond the Mississippi ? 

Nat. Intel!. Oct. 14, 1S29.] 



69 



No. XIX. 

Statement of important positions on this subject — Other treaties with Georgia — Treaty- 
making power of the general government — Are the Indians capable of making a 
treat}' ? — Are engagements with them to be called agreements? — The Supreme Court 
cannot pronounce a treaty void— Supposed case of Mr. Girard — Whether the national 
government can cede the territory of a Stale. 

In the postscript to my last number, I proposed to suspend my com- 
munications for some weeks, announcing, at the same time, several 
topics, which remained to be discussed. This annunciation seems not 
to have been sufficiently explicit. I must be permitted, therefore, to 
state, in the use of different phraseology, the points, which ought still 
to be examined, before the strength of the Cherokee cause can be 
justly and fully estimated. 

Unless I am mistaken, it can be clearly shown, 

That the original right of the Cherokees, confirmed and guaranteed 
by so many treaties, was not, and could not be, affected by the com- 
pact of 1802, between Georgia and the United States : 

That Georgia so understood the matter, for a quarter of a century 
after the year 1802, as appears by numerous acts of her legislature : 

That the proposed plan for removing the Indians is visionary, and 
derives no support from experience : 

That the proposed guaranty of a new country would not be entitled 
to confidence ; and that the offer of a guaranty, in present circum- 
stances, would be esteemed by the Cherokees a cruel insult : 

That the actual removal of the southwestern tribes, would, in all 
probability, be followed by great evils to them, without any correspond- 
ing benefit to them, or to others : and 

That a conscientious man will be very cautious how he advises the 
Indians to yield their unquestionable rights, and to commit all their 
interests to the issue of a mere theoretical experiment, which, to say 
the least, is very likely to fail, and for the failure of which there can 
be neither remedy nor indemnity. 

It has appeared, that the colony of Georgia, (with the cognizance of 
the British government,) and the State of Georgia, in the days of her 
youthful independence, negotiated with the Creeks and Cherokees on 
the undisputed basis, that these Indians were nations ; that they had 
territorial and personal rights ; that their territory was to remain in 
their possession, till they should voluntarily surrender it ; and that 
treaties with them are as truly binding, as treaties are between any 
communities whatever. Such is the aspect of all the transactions, in 
relation to this subject ; and no candid reader of history can avoid 
these conclusions. Seven formal treaties, all possessing these general 
characteristics, have been already mentioned. The last of them was 
dated in the year 1783, just fifty years from the first settlement of the 
colony. It is probable, that, within this period, many subordinate ne- 
gotiations were held. 

The treaty of Galphinton was formed in the year 1785, and is not 
unfrequently referred to. The next year, a treaty of peace was made 



70 



between Georgia and the Creeks. I have not been able to find these 
two documents, nor to ascertain the provisions which they contain. 
Quotations made from them on the floor of Congress, by a representa- 
tive of Georgia, leave no room to doubt, that they are of the same 
general character, as the treaties which preceded them. 

In 1787 the federal constitution was formed, by which the power of 
making treaties was conferred on the President and Senate of the 
United States. As this was a subject of great importance, the framers 
of the constitution not only took care (Art. II. section 2) to assign the 
treaty-making power to the general government, but to inhibit (Art. I. 
section 10) the several States from entering into " any treaty, alli- 
ance, or confederation." Since the constitution was adopted, no State 
has negotiated with Indians. All public measures respecting them 
have fallen within the scope of the powers vested in the general gov- 
ernment. 

Georgia, in her character of a sovereign and independent State, 
adopted the constitution, and thus became a member of the Union. 
She must be bound, therefore, by all acts of the President and Senate, 
which are performed by virtue of powers conferred in the constitution. 
Very recently, some of her public men have asserted, that the United 
States have neither the power to make treaties with Indians, nor to 
cede any part of the territory of a State. 

The power to make treaties with Indians is denied on the 
ground, that treaties can be made with nations only ; and that com- 
munities of Indians are not nations. Unfortunately for this theory, 
it was notoriously invented to answer a particular purpose. It is not, 
and cannot be, entitled to the least degree of credit. Communities of 
Indians have been called nations, in every book of travels, geography, 
and history, in which they have been mentioned at all, from the dis- 
covery of America to the present day. Treaties have been made with 
them, (uniformly under the name of treaties,) during this whole period 
The monarchs of Europe, and the colonies of Europeans, were per- 
petually making treaties with Indians, in the course of the 17th and 
18th centuries. The colony of Georgia always spoke of the Creek 
and Cherokee nations; and the compacts, which she made with them, 
she called treaties. The framers of the constitution must be supposed 
to have used language in its ordinary acceptation. When the con- 
stitution speaks of a treaty , it certainly embraces every sort of com- 
pact, which the universal voice of mankind had designated by that 
name. 

It would seem, according to the present doctrine of Georgia politi- 
cians, that civilized people may be called nations and can make 
treaties ; but uncivilized people are to be called savages, and public 
engagements with them are to be denominated what such engage- 
ments are to be denominated, we are not as yet informed. There 
must be a new code of national law, and a new set of writers upon it, 
in order to help Georgia out of her present imagined difficulties : — I 
say imagined, because there is no real difficulty ; not the slightest. 
What are the distinctive marks of a civilized people, and who is to 
decide whether these marks are found in a given case, are matters 
unexplained. Nor are we told in what respects treaties between 



71 



civilized nations are to be interpreted differently from public engage- 
ments with an uncivilized people. 

A representative from Georgia said in his place last winter, that 
these " agreements with the Indians had improperly been called 
treaties." (Let it be borne in mind, that Georgia herself always 
called them treaties.) In a subsequent part of his speech, he spoke of 
the "bad faith" of the Creeks, in not observing the stipulations, 
which they had made in these " agreements ;" and to this alleged 
bad faith, he gave the additional hard names of "fraud and perfidy." 
We may gather, therefore, the conclusion, that savages are bound by 
their agreements, though these agreements must not be ^called treaties. 
It is contended, however, that the United States are not bound by 
their agreements with the Cherokees, because the United States can- 
not, in their federal capacity, make agreements tvith savages, although 
the general government has the exclusive power of making treaties 
with civilized nations : the whole of which philosophy and logic, when 
thoroughly digested and concocted, amounts to this ; — that treaties be- 
tween civilized nations bind both the parties ; but that agreements 
with savage tribes, while they bind the savages, on the penalty of ex- 
termination, to observe every one of their engagements, leave civilized 
parties to break every one of their engagements, or " agreements," 
whenever it suits their pleasure, or their interest, to do so. This is 
the morality to be incorporated into the new code of national law, 
with another section declaring, that all parties to an agreement, even 
though it be called a treaty, have the perfect right to decide whether 
they are themselves civilized, or not, and whether other parties are 
uncivilized, or not. 

It is by no means favorable to this theory, that Washington, Hamil- 
ton, and Jefferson had the temerity, (following the uninterrupted 
current of example and authority, which had come down from the 
^iscovery of America,) to treat with Indians as nations, and to con- 
sider engagements with them as being treaties, within the meaning of 
^.he constitution. From the origin of our general government to the 
Mpresent day, every President of the United States, not excepting the 
■present incumbent, has used the words treaty and nation, in precisely 
fjthe same manner ; and every Senate has confirmed the universal use. 
t j*j Besides, the President and Senate must decide, from the nature of 
cthe case, what is a treaty, and what is not. Even the Supreme Court 
, j*cannot pronounce a document not to be a treaty, which the President 
lljand Senate have pronounced to be one ; for the constitution expressly 
!|? declares treaties to be " the supreme law of the land, and the judges, 
'Tin every State, to be bound thereby." If treaties are the supreme 
I law, they cannot surely be pronounced null and void by any judicial 



lJ tribunal. 
m Again, if tl 
* a mistake, in 



the President and Senate should be justly chargeable with 
i extending the treaty-making power to a subject, to which 
J it was not properly applicable ; and if the Supreme Court might de- 
*5 cide, that a certain document, purporting to be a treaty, is only an 
| agreement between the President and Senate of the United States and 
I another party, although both parties had long understood it to be a 
treaty, and had observed it as such ; — in such a case, what would 
honor and justice require 1 Should the people of the United States 



72 



take advantage of a blunder made by their highest functionaries, and 
long acquiesced in ? especially if the other party had reposed entire , 
confidence in the validity of the proceeding, and had made important | 
sacrifices in fulfilling his stipulations? 

Suppose, for instance, that an agent of the United States had 1 
bought ships of Mr. Girard, for public purposes, to the amount of 
§100,000, and the contract had been sent to the Senate and ratified as 
a treaty. Here would have been a great blunder, no doubt ; but is 
Mr. Girard to suffer by it? When he applies for payment, is he to be 
told, that the contract with him has improperly been called a treaty ; 
that the President and Senate have no power to make treaties on such 
subjects; and that, therefore, he cannot be.paid for his ships? Mr. 
Girard would be not a little amazed at this ; and might naturally 1 
enough exclaim, that, in all his intercourse with mankind, he had | 
never before met with so impudent, and so foolish, an attempt to j 
cheat. As he grew cooler, he might say : " You have had my ships, 
and sent them to sea. You engaged to pay me for them. If you 
called the contract a treaty, the name is one of your own choosing. 
Nor had I any thing to do with sending it to the Senate. I sold my 
ships to an authorized agent of the government, and he engaged that 
I should be paid for them. If the transaction is not a treaty, it is at 
least a fair bargain ; and that is enough for me. I expect honest 
men, whether public or private, willingly to execute their bargains; 
and, as to dishonest men, I shall do all in my power to hold them to 
their bargains, whether they are willing, or not." 

So the Cherokees may plead, that it was not for them to judge, as 
to the extent of the treaty-making power. They made an agreement 
with men, who represented their Father, the President. They sup- 
posed the President to know the extent of his own powers. At any 
rate, they relinquished land, and gave up many advantages, for the 
sake of a solemn guaranty in return. If the agreement, which they 
made, was not a treaty, it was an obligatory contract; and they have 
a right to expect, and to demand, that the contract shall be fulfilled. 

The politicians of Georgia contend, that, even if the United States 
have power to make treaties with Indians, still they have no power to 
cede away the territory of a State. This objection cannot be sup- 
•ported, in any sense. But it is plausible ; and the whole plausibility 
rests in a mere sophism. The United States have never ceded, nor 
attempted to cede, any part of the territory of Georgia. They simply 
guaranteed to the Indians their original title ; or, in other words, the 
United States solemnly engaged to the Indians, that no human power 
should deprive them of their hereditary possessions, without their own 
consent. This was no encroachment upon the rights of Georgia; nor 
did it relate at all to the territory of Georgia ; which territory em- 
braced those lands only, that had been previously obtained from the 
Indians. If the treaty of Holston were an encroachment upon the 
rights of Georgia, why was no complaint made at the time ? The 
senators from Georgia were in their seats ; and the citizens of Geor- 
gia were never charged, I believe, with passively surrendering their 
rights. Why, then/was no complaint made for more than thirty five 
years ? 

But it is perfectly clear, that the United States may cede the terri- 



73 



tory of any State in the Union by treaty. Such an event may be very 
improbable ; I care not if you say it is morally impossible, that the 
President and Senate should ever cede any part of what is really, and 
truly, the territory of a State. Yet, if such an event should take place, 
the transaction would not be void for want of constitutional power. 
The general government has the power to make treaties without limita- 
tion. Of course, treaties may be made by the United States, on all 
subjects which are frequently found in treaties of other nations. But 
there is scarcely a more common subject of treaties, in every part of 
the world, than a cession of territory. How are foreign nations to 
know the extent of our treaty-making power ? If our President, and 
two thirds of our Senators, will cede any part of our territory, there is 
no help for it. Our security lies, not in their want of power to do 
this ; but in their want of inclination. 

If the United States had ceded to England all that part of the State 
of Maine, which was in possession of the British forces at the close of 
the last war, how can it be pretended that the treaty would not be 
binding ? Indeed, at this very moment, there is a dispute about the 
boundaries of Maine. If the king of the Netherlands should egre- 
giously mistake, in deciding the question now referred to him, which I 
admit to be very improbable ; — still, if he should mistake, the State of 
Maine will lose 7,000,000 acres of land ; and all this will be lost by 
the operation of the treaty of Ghent. 

Proud nations have often been mortified, by being obliged to cede 
some part of their territory. It is not probable that our mortifications 
will come from that quarter. We have, however, not a few permanent 
causes of severe mortification. If it should be said five hundred years 
hence, that in the middle of the nineteenth century the United States 
were compelled, by an overwhelming force, to cede Staten Island to a 
foreign power, the fact would not be a thousandth part so disgraceful, 
as to have it truly said, that the United States adopted from Georgia 
the maxim, that power is right ;* and, in pursuance of that maxim, 
despoiled an unoffending and suffering people of those very posses- 
sions, Which WE HAD SOLEMNLY GUARANTEED TO THEM FOREVER. 



No. XX. 

Controversy respecting unappropriated lands — Compact oflC02 — The United States charged 
with a failure to execute the compact — The Indians not bound by a compact between 
third parties — Disappointed expectations of Georgia — The word peaceably as much bind- 
ing upon Georgia, as upon the United States — The public measures of Georgia, till 
lately, in accordance with the compact — Proclamation of Governor Troup — His opinion 
of the sacredness of treaties. 

From the preceding investigation it is manifest, that the Cherokees 
can plead against the claims of Georgia, not only that best of all titles, 
immemorial occupancy, fortified as it is by the solemn guaranty of the 

* The legislature of Georgia adopted this maxim, in nearly these words, as I shall 
show in a quotation from a report, approved by that body, in December, 1827. 
10 



74 



United States, in which guaranty the faith of Georgia is pledged with 
that of every other State in the Union ; but they can plead, also, the 
repeated and solemn acts of Georgia herself, as an independent State, 
— acts, which stand forth as most convincing proof, that the national 
character of the Indians was acknowledged by that State, and their 
rights of territory regarded as indisputable. 

It is contended, however, that the United States are bound to extin- 
guish the Indian title to all lands, which are now claimed as belonging 
to Georgia. This obligation is supposed to be derived from the com- 
pact of 1802. 

In one of my previous numbers it was mentioned, that a controversy 
existed, at the close of the revolutionary war, in regard to the question, 
whether the United States, in their federative capacity, or the several 
States, in their independent character, had the most equitable claim 
to lands, which had never been settled by whites, and which lay within 
the chartered limits of the States respectively. This claim, as pre- 
ferred by either party, was merely the right of purchasing lands of the 
Indians, to the exclusion of all other purchasers except the claimants, 
with the right of jurisdiction over the territory, after it should have been 
thus purchased. If, however, there were any lands, which had never 
come into the actual possession of whites, and which did not belong to 
any nation of Indians, such lands would be, in the strictest sense, un- 
appropriated, and the possession of them and jurisdiction over them 
might properly be assumed without delay, by the United States, or the 
several States, accordingly as the claim should be settled between 
these parties. 

I have nothing to say of the merits of this controversy. As between 
the United States and Georgia, it was settled by the compact of 1802, k 
which I will now describe. 

James Madison, Albert Gallatin, and Levi Lincoln, commissioners 
of the United States, and James Jackson, Abraham Baldwin, and 
John Milledge, commissioners of Georgia, executed " a deed of ar- 
ticles and mutual cession," April 24, 1802, of which the following 
provisions are all that are material to the present inquiry. 

The State of Georgia cedes to the United States " all the right, title, and claim, J 
"which the said State has to the jurisdiction and soil of the lands,"' which now appear 
on the map as the States of Alabama and Mississippi. 3 

The United States engage to pay Georgia $1,250,000, from the first net proceeds 
of said lands, " as a consideration for the expenses incurred by the said State, in re- 
lation to the said territory." * 

" The United States shall, at their own expense, extinguish, for the use of Geor- 
gia, as early as the same can be peaceably obtained, on reasonable terms, the Indian 
title to the county of Talassee," &c. &c. " and the United States shall, in the same 
manner, also extinguish the Indian title to all the other lands within the State of 
Georgia." 

The United States cede to Georgia " whatever claim, right, or title, they may have n 
to the jurisdiction or soil of any lands," which are within the chartered limits of H 
Georgia, and east of the present line between Alabama and Georgia. 

The great outlines of this compact are, 

1. The parties agree upon a division of claims, which they had both 
made to the same lands. 

2. The United States give Georgia a sum of money, not as the price 
of lands, nor as the price of claims to land, but " as a consideration 
for expenses incurred" by Georgia, " in relation to said territory." 



75 

3. The United States engage to extinguish the Indian title to lands 
within certain limits, " as early as the same can he peaceably obtained, 
on reasonable terms." 

Georgia now complains, that the United States have failed to fulfil 
this compact. But in what does the failure consist ? The money has 
been paid. The Indian title to three quarters of the lands, which be- 
longed to the Indians in 1802, within the intended limits, has been 
extinguished by the United States, in the manner prescribed ; and 
Georgia is now in actual possession. The remaining quarter has been 
repeatedly applied for ; and the United States have always stood ready 
to purchase it of the rightful owners, " on reasonable terms." At 
least, this has been repeatedly and officially declared to be the fact, by 
public functionaries of the United States. But if Georgia can convict 
our national authorities of culpable negligence in this respect, let her 
claim a fair indemnity. In order to a conviction, however, something 
more than mere assertion will be necessary. The evidence of neglect 
must be produced. It seems to be morally certain, whether the United 
States shall be able to vindicate themselves or not, that the remaining 
lands of the Cherokees cannot be " peaceably obtained " of the right- 
ful owners ; and if any indemnity is really due to Georgia, let her re- 
ceive it. 

The reader will not fail to see, that the Creeks and Cherokees could 
not be in any manner affected, as to their rights of soil and jurisdic- 
tion, by a compact, to which they never consented, and in the forma- 
tion of which they had no agency. If A. covenants with B., for a 
valuable consideration, that he will purchase the farm of C, as soon as 
he can obtain it lawfully, and at a reasonable price, this is a good con- 
tract, and will remain binding on A., till he discharges himself from 
it. But it would be absurd to say that C. is bound by such a contract. 
He may refuse to sell his farm on any terms ; or he may ask an un- 
reasonable price for it. In either case, so long as A. stands ready to 
purchase, at a reasonable price, he cannot be charged with a breach 
of contract. If he has been culpably negligent, by not taking suitable 
pains, or making reasonable offers, B. can doubtless claim an indem- 
nity. It would be rather a hard measure upon C, however, to turn 
him out of his house, and drive him from his farm, merely because he 
refused to sell his possessions. Such an administration of law would 
not be much admired, except perhaps in the court of Ahab and 
Jezebel. 

Nor would it alter the case, if A. and B., at the time of making the 
contract, expected that C. would sell his farm, at the first reasonable 
offer. There might be strong indications, that C. would become an 
intemperate man, a spendthrift, a sot, a vagrant, and that his farm 
would speedily pass into other hands : and yet these indications might 

I prove fallacious. C. might become a thrifty husbandman, keep his 
farm clear of debt, and leave it unincumbered to his heirs. And is he 

j to be blamed, because he turned out to be an industrious man, and 

| thus disappointed the unfavorable prognostications of B., who stood 

I looking upon the farm with covetous eyes 1 

Georgia says, tha.t she expected the United States would have long 

| since extinguished the title to all the Indian lands, which she claims. 
Very well. What if she did? The history of every man, and of 



76 



every community, is full of disappointed expectations. In the spring 
of 1818, the planters of Georgia expected to get thirty cents a pound 
for cotton, in many subsequent years ; and they made their purchases 
of land and slaves in that expectation ; but they are now glad to get 
ten cents a pound. This disappointment is a hundred times more felt 
by each man individually, than the failure to get lawful possession of 
a tract of indifferent land, in the remotest corner of the State. 

The terms of the compact between the United 'States and Georgia 
save the rights of the Indians, and were manifestly intended to save 
them. But if the United States had agreed to take forcible possession 
of the Indian country, and to put Georgia in possession, such an 
agreement would be absolutely void, for several reasons. First, it 
would be palpably and monstrously unjust. Secondly, it would be in 
opposition to previously existing treaties, between the United States 
and the Indians, which treaties were the supreme law of the land. 
Thirdly, it would be in opposition to treaties between Georgia and the 
Indians, — treaties never abrogated nor annulled, — and therefore Geor- 
gia could not insist upon its execution. 

There is not a more established maxim of English law than this ; 
viz. that unlawful contracts are not binding. If, for instance, A. 
covenants with 13. in consideration of a thousand dollars, that he will 
compel C, by threats, duress, or false imprisonment, to sign a deed of 
land ; and B. should undertake to enforce the covenant in a court of ' 
justice, it is probable that both the parties would find themselves in a 
penitentiary, much sooner than in possession of C.'s land. 

It is clear, then, that the United States could not be bound, by the 
compact of 1802, however that instrument might be understood or 
construed, to do more than purchase the lands of the Cherokees, | 
within the prescribed limits, whenever the rightful owners should be ! 
willing to sell. 

But this is not all. A fair interpretation of the compact binds i 
Georgia to the same course of proceeding, which had previously been , 
pursued, for the acquisition of Indian lands. This course was per- 
fectly well known to both parties. It was always through the medium 
of the treaty-making power. 

The compact says, that the United States shall extinguish the In- j 
dian title. The Indians had a title, it would seem ; and a title of such ■ 
a kind, as would require the agency of the United States before it 
could be extinguished. It would not expire of itself ; it would not 
vanish before the march of civilization ; but the immense power of | 
the general government must be brought to bear upon it. Even this ' 
power might fail ; and hence the provision, that the United States i 
should not be bound to do what was impossible, or unreasonable. At 
that time, it would doubtless have been thought morally impossible for 
our general government to break plain, positive treaties ; or to take i 
forcible possession of lands in the peaceable occupancy of Indians, 
even though these lands were not protected by treaty. The title was i 
to be extinguished peaceably, and on reasonable terms. The law of 
the strongest was not to be relied on. All the parties were to sustain 
the character of reasonable beings. There was, to be a consent of 
terms, a union of minds, and not an appeal to the sword. This part f 



77 



of the compact is as truly obligatory, as any other part ; and as truly 
obligatory upon Georgia, as upon the United States, 

It was stipulated by the commissioners, that the compact should be 
binding, if the assent of the legislature of Georgia should be given 
within six months from the date ; provided, that congress should not, 
within the same period, repeal the act, by virtue of which the agree- 
ment had been made. The legislature of Georgia assented to the 
compact, and congress did not repeal the act. The compact there- 
fore took effect. 

The enacting clause, by which Georgia ratified the compact, is in 
the following words, which ought to be very diligently considered by 
the leading men of that State : viz. 

" Be it enacted by the senate and house of representatives of the State of Geor- 
gia, in general assembly met, and by the authority thereof, That the said deed, or 
articles of agreement and cession be, and the same hereby is and are fully, substan- 
tially, and amply ratified and confirmed in all its parts ; and hereby is and are de- 
clared to be binding and conclusive on the said State, her government and citi- 
zens, forever.' 1 '' 

Now let it be remembered, that the State of Georgia, fully aware 
that the treaty-making power was vested exclusively in the general 
government ; knowing in what manner that power had been exercised 
for thirteen years ; that no less than eight treaties had previously been 
made by the general government with Indian nations, residing within 
the chartered limits of Georgia ; that most of these treaties contained 
cessions of land, and established boundaries of territory, with solemn 
guaranties ; that there was no way of extinguishing the Indian title, 
except by treaty ; — the legislature of Georgia, knowing all these things, 
solemnly ratified the compact, in accordance with which the United 
States only could extinguish the Indian title, and this could be done 
only in a peaceable manner. The compact containing these provisions 
was ratified, " in all its parts," and declared to be bidding on the 
" State, her government and citizens, forever." 

With what shadow of reason, then, can it be pretended, that Geor- 
gia has a right to extinguish the Indian title herself, without waiting 
for the interposition of the general government ; or that the Cherokees 
have no title to be extinguished, being merely tenants at will, or 
tenants by sufferance 1 When the politicians of Georgia stretch out 
their grasping hands to seize the property of unoffending Cherokees, 
let this word forever, the ^closing word of a solemn act of legislation, 
ring in their ears, till they shrink back from oppression, and betake 
themselves to that course of equity, which is prescribed in the com- 
pact, thus solemnly ratified and sanctioned. 

The public measures of Georgia, in relation to the Indians, have all, 
till recently, been conformed to the principles of this compact of 1802. 
It is not quite five years since the spurious treaty of the Indian Spring 
was made ; — a treaty, which the highest authorities of our nation set 
aside for manifest fraud. The proclamations and reasonings of the 
Governor of Georgia, in regard to the effect of this treaty, (on the 
assumption that it was valid,) are, in the main, correct and proper. 

The treaty was made Feb. 12, 1825. On the 22d of March follow- 
ing, Gov. Troup issued a proclamation, which commences thus : 
" Whereas, by a treaty concluded with the Creeks, &c. their claims 



78 



to the whole territory within the limits of Georgia were ceded to the 
United States, &c. by which act the territory aforesaid, according to 
the stipulations of the treaty and of the articles of agreement and ces- 
sion of 1802, will, on or before the first day of September 1826, pass 
into the actual possession of the State of Georgia :" &c. 

In this preamble, some of the principal doctrines, for which I have 
been contending, are plainly acknowledged or implied. The lands 
are here admitted to have been ceded to the United Stutes by a treaty ; I 
and it is declared that they will pass into the actual possession of 
Georgia, eighteen months after the date of the proclamation ; not be- \ 
cause Georgia, as a sovereign and independent State, had a paramount f 
title to them, nor because it was found written in the laws of nations P 
that these lands belonged to Georgia ; but because the stipulations of 
the treaty and the compact of 1802, so required. J 

This is an honest and accurate account of the matter. The United 
States had purchased lands of the Indians. These lands, when pur- 
chased, and after the time for the Creeks to remove from them should 
have arrived, would "pass into the actual possession of Georgia" for 
this very good reason ; viz. the United States had covenanted, that as 
soon as lands, within certain limits, could be peaceably obtained, they 
should be thus obtcined, "for the use of Georgia" 

In the same proclamation, Gov. Troup warns " all persons, citizens 
of Georgia or others, against trespassing, or intruding upon, lands oc- 
cupied by the Indians, within the limits of this State, [that is, the 
lands described in the treaty,] either for the purpose of settlement, or 
otherwise, as every such act will be in direct violation of the provisions 
of the treaty aforesaid, and will expose the aggressors to the most cer- 
tain and summary punishment by the authorities of the State and of I 
the United States." 

The treaty prescribed, that the Creeks should remove before Sep- 
tember of the next year, till which time they were to retain unmolested 
possession of their country. But some of the citizens of Georgia might 
feel inclined to take possession earlier. Such a measure the Governor 
wares them against ; assuring them, that it would be a direct violation 
of the treaty, and would bring upon the trespassers and intruders cer- 
tain and summary punishment ; and this punishment would fall upon [ 
citizens of Georgia, as well as others, if they should expose themsel ves 
to it. Now, as the treaty of the Indian Spring was justly considered 
by Gov. Troup as a sufficient barrier to protect the Creeks in the pos- 
session of their country, till the time fixed in the treaty for their re- 
moval, why are not the treaty of Holston, with its solemn guaranty, 
(1791,) and the first treaty of Teilico, with its repeated guaranty, , 
(1798,) and the treaty of General Jackson, with its recognition of 
previous treaties, (1817,) — why are not all these compacts a sufficient 
protection of the Cherokees " against all persons," to use the lan- 
guage of the proclamation, " citizens of Georgia, or others, trespassing 
or intruding upon the lands occupied by the Indians V* 

We may safely gather from the passages here quoted, and the one 
which is to follow, that Gov. Troup found no difficulty in understand- 
ing the treaty ; that its provisions were, in his opinion, to be rigidly 
observed ; and that ample powers were in the possession of the public 
authorities of the United States for punishing " aggressors." 



79 



The proclamation continues thus : " All good citizens, therefore, 
pursuing the dictates of good faith, will unite in enforcing the obliga- 
tions of the treaty as the supreme law, aiding and assisting, &c. &c. 
and all officers, civil and military, are commanded to be vigilant in pre- 
venting offences under it, and in detecting and punishing offenders." 

In the principles here assumed and enforced I heartily concur. 
The Governor, who issued this proclamation, is now a member of the 
Senate of the United States : where he will have the best opportunity 
to pursue the dictates of good faith, and to assert the obligations of 
treaties as the supreme law. Most gladly shall I see him engage in a 
work, which so well becomes a Senator of our great republic ; and, 
should he thus engage, he may be encouraged with the thought, that 
his efforts will not be unsuccessful. 



No. XXI. 

Gov. Troup's opinion of the effect of treaties— Soil and jurisdiction go tog-ether— The Chero- 
kees cannot lie secured in the possession of their lands, if they come under the laws of the 
Stales — Reasoning- of Messrs. Campbell and Meriwether— Select Committee of Con- 
gress — Laws of Georgia — Decisions of the Supreme Court — These decisions a defence 
of the Cherokees. 

It is at the present moment a favorite doctrine of Georgia, that the 
right of soil in the Indian country and of sovereignty over it, is vested 
in that State ; and has been thus vested, ever since the peace of 1783. 
As a consequence of this assumed right, the Senate of Georgia openly 
declared, in December, 1827, that the State might properly take pos- 
session of the Cherokee country by force ; and that it was owing to 
her moderation and forbearance that she did not thus take possession. 

But Gov. Troup appears to have been of a different opinion. In 
his letter to the Secretary of War, dated June 3, 1825, speaking of 
the treaty, by which he supposed the territory of the Creeks had been 
ceded, (in which supposition he would have been correct, if the treaty 
had not been spurious,) he says; " By the treaty of the Indian Spring, 
the Indian claims are extinguished forever. The article is worded in 
the present tense. On the instant of ratification, the title and juris- 
diction became absolute in Georgia." 

Now I humbly conceive, that, if the title and jurisdiction became 
absolute in Georgia, as a consequence of the treaty, the inference is 
inevitable, that neither the title, nor the jurisdiction, was absolute 
I before that event ; and if the Indian claims were extinguished by the 
I treaty, there must have been claims in existence, previously to that 
! treaty, capable of being extinguished by it. The Cherokees are now 
j in the same condition, as to title and claims, as the Creeks were, 
I before the treaty of the Indian Spring ; therefore the Cherokees have, 
| at the present time, on the authority of Gov. Troup, claims yet to be 
extinguished by treaty, and neither the title, nor the jurisdiction, of 
I the Cherokee country has yet become absolute in Georgia. 



80 



Proceeding in his argument, as to the effect of the treaty, Gov. Troup 
says ; " Soil and jurisdiction go together ; and if we have not the 
right of both, at this moment, we can never have either by better 
title. ,*If the absolute property, and the absolute jurisdiction have not 
passed to us, when are they to come 1 Will you make a formal con- 
cession of the latter 1 When and how 1 If the jurisdiction be sepa- 
rated from the property, show the reservation which separates it : 'tis 
impossible." 

The design of this argument was to prove to the general govern- 
ment, that Georgia might properly survey the newly acquired lands im- 
mediately ; though the Creeks were not obliged to remove till Septem- 
ber 1826. The argument is this : By the treaty, the right of soil be- 
came absolute in Georgia, and the right of jurisdiction accompanied 
the right of soil ; therefore Georgia might immediately exercise the 
power of surveying the lands. Without giving any opinion, as to the 
conclusiveness of the Governor's reasoning, it is evident, (and for this 
purpose I have cited the passage,) that he considered the title as having 
passed by means of the treaty. Consequently, the title, both in respect 
to jurisdiction and soil, was previously in the Creeks, and not in Geor- 
gia ; and, of course, the title to the Cherokee country, both in respect 
to soil and jurisdiction, is now in the Cherokees, and not in Georgia. 

I entirely agree with the Governor, that the soil and jurisdiction go 
together. The letter of the President of the United States to the 
Cherokees, by which they were assured that they should retain pos- 
session of their lands, though they should come under the laws of 
Georgia, must have been founded altogether in mistake. Where is 
the power in the general government to secure individual Cherokees 
in the possession of their lands, after the Cherokee community shall 
have ceased to exist, and the individuals of which it was composed 
shall have come under the dominion of four or five different States ? 
The Senate of Georgia has declared, that the Cherokees, as individu- 
als, will not be suffered to retain more than a sixth part of the land, 
which is now in the possession of the Cherokee community, within 
the chartered limits of Georgia. And as to that sixth part, how could 
the President of the United States secure the individuals in the pos- 
session of it, or guard against the effect of State laws, which might be 
designed to operate in such a manner, as should speedily deprive the 
Indians of what little property they now possess 1 

In the written communication of Messrs. Campbell and Meriwether, 
eminent citizens of Georgia, acting as commissioners of the United 
States, and being exceedingly desirous to obtain a cession of the 
Cherokee country for the use of Georgia, these negotiators, in the year 
1823, say to the Cherokee nation, "The sovereignty of the country 
which you occupy is in the United States alone. No State, or foreign 
power, can enter into a treaty or compact with you. These privileges 
have passed away ; and your intercourse is restricted exclusively to 
the United States." 

The doctrine is here plainly asserted, that the general government 
only could treat with the Indians ; and that separate States were as 
really excluded from such an agency, as foreign nations were. This 
exclusive right of treating, which the commissioners call sovereignty t 
was not an encroachment upon the natural rights of the Indians, it 



81 



being a matter of express and positive stipulation with them, perfectly 
understood by them, and operating for their protection. 

A Select Committee of the Bouse of Representatives, in a Report 
made to Congress, March 3, 1S27, cite a passage from a letter, ad- 
dressed, by the Senators and Representatives in Congress from Geor- 
gia, to the Secretary of War, dated March 10, 1S24 ; in which the 
writers are understood to say, that the Cherokees are " to be viewed 
as other Indians, as persons suffered to reside within the territorial 
limits of the United States, [that is, the limits of the peace of 1783,] 
and subject to every restraint, ivhich the policy and power of the general 
government require to be imposed on them, for tbe interest of the Union, 
the interest of a particular State, and their own preservation." 

Here it is implied, that whatever restraint is imposed upon the Indi* 
ans, must be imposed by the general government, as well when " the 
interest of a particular State" is concerned, as when " the interest of 
the Union" is to be affected. This is certainly the only rational con- 
struction, which can be given to the whole history of our intercourse 
with the Indians, since the adoption of the federal constitution. 

But there is one more source of evidence on this subject, which is 
of a still more striking character, and which should set the question at 
rest, even in the minds of the people of Georgia. It is the constant 
admission, on the part of that State, in her most solemn acts of legis- 
lation, that the Indian lands within her chartered limits, are acquired 
for her use, through the medium of the treaty-making power, which is 
vested exclusively in the United States. This is manifest in the very 
titles of her laws, as well as in the enactments. 

The statute book of Georgia contains an act, which was approved by 
Gov. Troup, June 9, 1825, of which the following is the title : viz. 

" An act to dispose of and distribute the lands lately acquired by the United States* 
for the use of Georgia, of the Creek nation of Indian?, by a treaty made -and con- 
cluded at the Indian' Spring, on the 12th of February, 1825." 

In the first section it is enacted, " That the territory acquired of the Creek nation 
of Indians, by the United States, for the use of Georgia, as described in articles of a 
treaty entered into and concluded between commissioners on the part of the United 
States, and the chiefs, head men, and warriors of the Creek nation of Indians," &c. 

This is a perfectly fair statement of the case. If the territory ivas 
lately acquired of the Creek nation, it manifestly belonged to the Creek 
nation before it was thus acquired ; and if the territory belonged to the 
Creeks, it was plainly under their jurisdiction ; for, as Gov. Troup 
said, in his letter above quoted, w r hich was written only six days before 
signing this act, " soil and jurisdiction go together." If it was ac- 
quired by the United States, this was done because, under the federal 
constitution, as it has been uniformly administered, the United States 
have the exclusive power of extinguishing Indian title. If it was ac- 
quired by a treaty, it was because the Creeks, being a nation, could 
dispose of their common property by treaty ouly. If it was acquired 
for the use of Georgia, then Georgia had not the use previously ; but 
the United States had covenanted with Georgia, that they would obtain 
this title for her use, as soon as it could be obtained "peaceably" and 
'* on reasonable terms." 

Abundant evidence might be adduced to prove that Georgia, till 
after this period, always admitted the exclusive power of acquiring the 
11 



82 



Indian territory to be vested in the United States. But additional 
proof is unnecessary. The man who will not be convinced by the ci- 
tations already made, must be beyond the reach of conviction. 

It has been said, that the Supreme Court of the United States has 
declared the jurisdiction of the Indian country to be in Georgia. But 
the decision of the Court, in the only two cases which I have seen 
quoted on this subject, does not touch the question of jurisdiction, or 
present title ; except that the Court throws out some expressions, which 
were manifestly intended for the protection of the Indians in their 
right of occupancy ; that is, their right of possessing their own country, 
to the exclusion of the whites, without limitation of time. 

The Court deci'ded, in the case of Fletcher and Peck, that the con- 
tingent interest of Georgia in the Indian territory was of such a nature, 
that it might be granted to individuals, and might not improperly be I 
designated by the technical phrase of seisin in fee ; though this con- ! 
tingent interest was subject to the Indian title of occupancy, which j 
' title was certainly to be respected by all courts, until it should have 
been legitimately extinguished.' 6 Cranch, 142. 

In the case of Johnson and Mclntosji, the point decided was, that 
grants of land, by Indian chiefs to individuals among the whites, can- 
not be sustained by the courts of this country. The reason assigned 
is, that the rulers of the European nations, the legislatures of the colo- 
nies before the revolution, and of the several States, and the United 
States, since the revolution, have all asserted the exclusive right of the 
government to extinguish the Indian title. The court did not feel 
justified in going into the consideration of abstract principles. The 
question to be decided vvas a mixed question of national and municipal , 
law, which had been settled by the practice of the governments of j 
Europe and America, from the discovery of this continent to the \ 
present time. But the court was very explicit in admitting the Indian 
title of occupancy. 

After stating, that the governments of Europe agreed among them- 
selves to respect the right of discovery as claimed by each, the court 
said : 

" The exclusion of all other European nations, necessarily gave to 
the nation making the discovery the sole right of acquiring the soil p 
from the natives, and establishing settlements upon it." 8 Wheaton, [ 
p. 573. 

Again : " They [the original inhabitants] were admitted to be the 
rightful occupants of the soil, with a legal as well as just claim to 
retain possession of it, and to use it according to their own discre- 
tion." p. 574. 

Yet, as the Indians couid not sell to foreign nations, except to the ■ 
discoverers and those claiming under them, (this being a matter of 
agreement among the European nations ;) and as they could not sell 
to private purchasers, (this being a matter of municipal law among the 
whites, and often of treaty stipulation between whites and Indians,) 
the natural rights of the Indians were impaired, or rather circumscribed 
or limited. There was nothing in this limitation, however, of the na- 
ture of usurpation or encroachment. It was a matter of necessity, if 
perpetual collisions were to be avoided ; and a matter of mutual benefit 
to colonists from different nations ; and especially of benefit to the 



-I 



83 



Indians. What a scene of strife, enmity, fraud, and bloodshed, would 
have been exhibited, if English, French, and Spanish colonists had 
been permitted to make purchases of Indian lands from the same tribe, 
in the same neighborhood, and at the same time 1 And what imposi- 
tions would have been practised upon Indians by white purchasers, if 
they had been allowed to make purchases of the natives, without any 
restraint from the government ? It is both absurd and cruel to con- 
strue this necessary limitation of the natural rights of the Indians, (a 
limitation which was necessary to the protection and security of all 
parties,) as a denial that the Indians have any rights at all. The 
court gives no sanction to such an absurdity. Besides the passages 
already quoted, are several others in accordance with the same prin- 
ciples. 

" It has never been contended," says the court, " that the Indian 
title amounted to nothing. Their right of possession has never been 
questioned. The claim of government extends to the complete ulti- 
mate title, charged with this right of possession, and to the exclusive 
power of acquiring that right." p. 603. 

The Indians have the right, then, of possessing their country, with- 
out limitation of time ; though they are restrained from selling their 
country to any individuals, or any community, except the general gov- 
ernment ; a restraint, which operates altogether in their favor. 

Again, the court says : " Such a right [the Indian title of occu- 
pancy] is no more incompatible with a seisin in fee, than a lease for 
years is, and might as effectually bar an ejectment." p. 592. 

I consider this passage as most decisively in favor of the right of 
the Cherokees to remain on their land, as long as they please. Most 
readers of newspapers do not understand terms of law. I must be 
permitted, therefore, to attempt an illustration of what is, to a lawyer, 
perfectly plain. 

If A. holds land to himself and his heirs forever, he is said to be 
seized in fee of that land. He may sell an estate, or interest, in the 
land to B. and his assigns, for a hundred or a thousand years, and yet 
he will himself remain seized in fee ; because, at the expiration of the 
hundred, or the thousand years, the land will come again to the pos- 
session of his heirs. During all this time, A. and his heirs are seized 
in fee, and B. and his assigns are tenants for years. Now a decision 
that Georgia is seized in fee of land within her chartered limits, which 
land is at present in the possession of the Cherokees, no more proves 
that the Cherokees are not the " rightful occupants of the soil, with a 
legal as well as just claim to retain possession of it," than the fact that 
A. is seized in fee of land, of which B. has a good lease to him and 
his assigns for a term of years, proves that A. may bring an ejectment 
against B. while the term is unexpired. As, in the latter case, A. and 
his heirs must wait till the hundred, or the thousand years are expired, 
before they can claim possession ; so, in the case of the Cherokees, 
Georgia must wait, till they voluntarily dispose of their country, 
through the medium of the treaty-making power ; and then Georgia 
may take the immediate possession. 

There is, indeed, another possible alternative. If the Cherokees 
should make war upon the United States, they might then, by the laws 
of nations, be treated as a conquered people. In that case, their coun- 



84 



try would fall under the full sovereignty of the United States, and by 
virtue of the compact of 1802, that part of it, which is within the 
chartered limits of Georgia, would immediately come into the actual j 
possession of Georgia. But so long as the Cherokees act in a peacea- 
ble manner, it would be barbarous in the extreme to treat them as a 
conquered people. I speak without any reference to treaties, and on 
the supposition that we were bound only by the common obligations 
of justice and humanity. 

It is to be observed, that the court said nothing, in either of these 
cases, as to the effect or application of treaties. What was said on 
the subject of the rightful occupancy of the Indians, had respect to 
the naked claims of peaceable Indians, who remained upon the lands j 
of their fathers. How much stronger the case of the Cherokees now 
is, defended as they are by so many solemn stipulations, must be ap- ■ 
parent to every candid mind, j L 



No. XXII. \ 

. 

Report of a joint committee of the legislature of Georgia— Reasoning" and morality of this 
Report — Lands not held against the Indians by discovery alone — Flagitious immorality I 
cannot be legalized — Instance of the slave" trade — Law of Georgia, Dec. 20, 1828 — 
Remarks upon it — Who are the persons thus reduced to slavery ? — and by whom 1 

In a quotation, which my last number contained, from a decision of 
the Supreme Court of the United States, it is said, " That the Indian [ 
right of possession has never been questioned ;" and that " it has 
never been contended, that their title amounted to nothing." This j 
decision was pronounced in 1823. Since that time, the politicians of j 
Georgia have strenuously contended, that the Indian title amounts I 
to nothing. 

In a Report of the Joint Committee of the Legislature of Georgia, | 
which was approved by the Senate of that State, Dec. 27, 1827, are | 
found such passages as the following : 

The Committee say, that European nations " asserted successfully "the right of | 
occupying such parts" of America, " as each discovered, and thereby they estab- 
lished their supreme command over it." 

Again: " It may be contended, with much plausibility, that there is, in these , 
claims, more of force, than of justice ; but they are claims, which have been recog- 
nized and admitted, by the whole civilized world ; and it is unquestionably true, 
that, under such circumstances, force becomes right." 

The Committee suppose that " every foot of land in the United States is held.'* 
by the same title. 

The Committee say, that it is contended, that, by the compact of 1802, " a con- , 
sideration was contemplated to be paid by the United States to the Indians, for their ! 
relinquishment of this title; and therefore that it was of such a character as was 
entitled to respect, and as could not be taken from them unless by their consent." 
The Committee add, " But we are of a different opinion." 

" Before Georgia became a party to the articles of agreement and cession, [the ' 
compact of 1802] she could rightfully have possessed herself of those lands, either 
by negotiation with the Indians, or by force ;. and she had determined, in one of \ 
the two ways, to do so : but by this contract she made it the duty of the United | 
States to sustain the expense of obtaining for her the possession, provided it could 

; • ; ' • I 



8.5 



be done upon reasonable terms, and by negotiation ; but in case it should be neces- 
sary to resort to force, this contract with the United States makes no provision ; 
the consequence is, that Georgia is left untrammelled, and at full liberty to prosecute 
her rights in that point of view, according to her own discretion, and as though no 
such contract had been made." 

The Committee give it as their opinion, " That the right of soil and sovereignty 
was perfect in Great Britain ; that the possession of the Indians was permissive; 
that they were under the protection of that government; that their title was tempo- 
rary ; that they were mere tenants at will ; and that such tenancy might have been 
determined at any moment, either by negotiation or force, at the pleasure of Great 
Britain." 

The words printed in italics are thus distinguished by the Committee. 

It might be difficult to tell which is most remarkable, the reasoning 
or the morality of these extracts. 

The Committee argue, that, as there is no provision in the compact 
of 1S02, by virtue of which the United States are bound to use force 
upon the Indians, it follows that Georgia has a right to apply force, 
whenever she pleases. This is one specimen of the logic. Again : 
to most people there would seem to be weight in the remark, that, as 
the Indians were evidently to receive a consideration for their lands, 
they must have a title which should command respect. But no; in 
view of this statement, the Committee come to a different conclusion. 
Here is another specimen. 

The morality of the doctrines inculcated by the Georgia legislature 
may be sufficiently understood by the broad positions, that discovery 
gave absolute title to Europeans ; that the title of the original inhabit- 
ants was permissive ; that it was a mere tenancy at will (which is no 
title at all) ; that the discoverer might determine the tenancy at any 
moment, by negotiation or force ; and that, as all European govern- 
ments are alleged to be agreed in these principles, " force becomes 
right." 

The inhabitants of North America might therefore have been right- 
fully driven into the ocean, " at any moment" when the discoverers 
should have been willing and able thus to drive them. It is to be 
inferred, that Cortes and Pizarro were only executing the lawful com- 
mands of the king of Spain, when they were taking possession of 
Mexico and Peru, which, according to this doctrine, rightfully belong- 
ed to him ; though, in doing v so, were under the unpleasant necessity 
of murdering the original inhabitants. 

The Committee are entirely mistaken, in point of fact, when they 
say, that " every foot of land in the United States is held" by such a 
title as has been described ; that is, a title in the European sovereign, 
which, on the moment of discovery, supplanted and subverted all the 
rights of the natives to the lands, on which they were born, and of 
which they were in full possession. It may be truly said, that there 
is not, within the limits of the United States, as fixed by the peace of 
1783, a single foot of land held, as against the original inhabitants, by 
the title of discovery alone. Incomparably the largest portion of the 
territory, within the above mentioned limits, has been purchased of 
the Indians. Some small portions have been conquered ; the original 
I owners having been nearly exterminated in war, or driven from their 
| lands by a superior force, or compelled to cede them, as the price of a 
i pacification. But in all these cases, the wars had some other orio-in, 
! than an attempt to enforce the title of discovery. The politicians of 



86 



Georgia are requested to produce a single instance, after the settle- 
ment of the Anglo-American colonies commenced, of any English | 
sovereign, or any colonial governor, or any colonial legislature, or any ! 
State legislature anterior to the treaty of the Indian Spring in 1825, j 
having assumed the right of taking forcible possession of Indian coun- 
try, at any moment, by virtue of the title of discovery, and without any 
regard to what the Supreme Court has called " the just and legal 
claim" of the natives to retain possession of their country. The ex- 
clusive right of extinguishing the Indian title, or what has usually been I 
called the right of preemption, is a totally different thing from this all- i 
absorbing and overwhelming right of discovery, on which Georgia now 
insists. If a single instance of such an assumption can be produced, 
let it be brought forward. Let us contemplate the circumstances in 
which it originated, and examine its claims to respect. Thousands of 
instances can be adduced, on the other hand, of acknowledgments L 
made by emigrants from Europe, and by rulers of every grade from 
the highest to the lowest; — acknowledgments, which admitted the r 
perfect right of the Indians to the peaceable possession of their coun- \ 
try, so long as they chose to retain it. 

But if all the governments of Europe had, during the three last 
centuries, held the doctrine now so warmly espoused by Georgia, how 
utterly vain would be every attempt to defend it, or to make it appear 
otherwise than tyrannical, cruel and abominable. Not all the monarchs 
of Europe, nor all the writers on the laws of nations, — not all the power 
and all the sophistry in the world, — could alter its character, or con- I; 
vince an honest, candid, intelligent man, that it is entitled to the least 
respect. What is this doctrine, so necessary to the present claims of F 
Georgia ? It is neither more nor less than the assumption, that the I 
circumstance of an English vessel having sailed along the American f 
coast from cape Hatteras to the bay of Fundy, as the case might be, 1 
gave the English king an absolute and perfect title, not only to the 
coast, but to all the interior ; and that he might therefore empower P 
any of his subjects to take forcible possession of the country, to the 1 
immediate exclusion and destruction of the original inhabitants. 

In the history of the slave-trade, we have a perfect exhibition of the 
total inefficacy of human law to sanction what is flagitiously immoral ; ! 
especially after the eyes of mankind are fixed upon it. For more than 
two hundred years, the principal powers of Europe legalized the slave- 
trade. The judicial tribunals of all countries sustained it by their de- 
cisions. It was universally established and assented to. But was it 
right 1 The voice of the world has pronounced its irrevocable sen- J 
tence. It is now piracy, and to have been recently connected with it 
is indelible infamy. But is it more clearly wrong to take Africans 
from their native land, than it is to make slaves of the Cherokees upon 
their native land ? or, on penalty of their being thus enslaved, driving ' 
them into exile ? 

It may be supposed, that this is too strong a representation of the > 
case ; and that it would be no very serious calamity to the Cherokees, i 
if they were to come under the laws of Georgia. One would think, : t 
however, that the spirit of the Report, from which quotations have * i 
been made, must be an indication of what is to be expected from Geor- [ so 
gia, in the way of systematic legislation on this subject. 



87 



One law has already been enacted, with the direct view of extend- 
ing the jurisdiction of Georgia over the Cherokees. It was approved 
Dec. 20, 1828, and deserves a particular consideration. 

The first five sections divide that part of the Cherokee country, 
which falls within the chartered limits of Georgia, into five portions, 
attaching each one of these portions to a contiguous county of Geor- 
gia. The sixth section extends the laws of Georgia over white resi- 
dents within the limits above mentioned ; and the seventh declares, 
that, after June 1, 1830, all Indians " residing in said territory, and 
within any one of the counties as aforesaid, shall be liable and sub- 
ject to such laws and regulations, as the legislature may hereafter 
prescribe." 

Sec. 8. " That all laws, usages, and customs, marie, established, and in force, in 
the said territory, by the said Cherokee Indians, be, and the same are hereby, on 
and after the first day of June, 1S30, declared null and void. 

9. " That no Indian, or descendant of Indian, residing within the Creek or Chero- 
kee nations of Indians, shall be deemed a competent witness, or a party to any suit, 
in any court created by the constitution or Jaws of this State, to which a white man 
may be a party." 

Under the administration of this law, a white man might rob or 
murder a Cherokee, in the presence of many Indians, and descendants 
of Indians ; and yet the offence could not be proved. That crimes of 
this malignant character would be committed is by no means improba- 
ble ; but assaults, abuses, and vexations, of a far inferior stamp, would 
render the servitude of the Cherokees intolerable. The plan of 
Georgia is, as explained by her Senate, to seize five sixths of the terri- 
tory in question, and distiibute it among her citizens. If a Cherokee 
head of a family chooses to remain, he may possibly have his house 
and a little farm assigned to him. This is the most favorable supposi- 
tion. But his rights are not acknowledged. He does not keep the 
land because it is his own ; but receives it as a boon from Georgia. 
He will be surrounded by five white neighbors. These settlers will 
not be from the more sober, temperate, and orderly citizens of 
Georgia, but from the idle, the dissolute, the quarrelsome. Many of 
them will hate Indians, and take every opportunity of insulting and 
abusing them. If the cattle of a Cherokee are driven away in his 
presence ; if his fences are thrown down and his crops destroyed ; 
if his children are beaten, and his domestic sanctuary invaded ; — • 
whatever outrage and whatever injury he may experience, he cannot 
even seek a legal remedy. He can neither be a party, nor a witness. 
He has no friend, who can be heard in his behalf. Not an individual 
can be found, who has any interest in seeing justice done him, and 
who, at the same time has any power to serve him. Even the slaves of 
his new neighbors are defended by the self-interest of their masters. 
But he has not even this consolation. He is exposed to the greatest 
evils of slavery, without any of its alleviations. Every body is let loose 
upon him ; and it is neither the interest, nor the inclination, nor the 
official duty, of the white settlers to defend him. Every body may 
destroy his property ; but nobody is bound to keep him from starvino- 
when his property is gone. {low long could a Cherokee Jive under 
such treatment as this? 

Accustomed from his birth to feelings of entire equality and inde- 



88 



pendence, he would find himself, at a single stroke, smitten to the 
earth, and there held .till manacles of a most degrading vassalage were 
fastened upon him. As soon as the net of Georgia legislation is 
sprung over him, he is equally and instantly exposed to public perse- 
cution and private indignity. He feels himself to be a vagabond, even 
while standing upon the very acres, which his own hands have labori- 
ously subdued and tilled, — an outlaw, in the house, which he has 
erected and made comfortable for himself, and which, to a white man, 
would be a castle, — a trespasser, for innocently treading the soil of 
his native forests, — an intruder, for drinking the pure water of his 
native springs, or breathing the air of his native mountains, — a stran- 
ger among his neighbors, — an alien, on the spot where he was born. 

Who are the human beings, thus suddenly brought into so deplora- 
ble and abject a condition ? Are they CafTres and Hottentots, skulk- 
ing through the woods, in a state of nudity, or covered only by a few 
shreds of tattered sheepskin 1 Are they runaway slaves, pursued by 
the vengeance of exasperated masters 1 Are they Ishmaelites, way- 
laying the path of inoffensive travellers, and their hands reeking with 
the blood of recent murders ? Are they bands of ruffians, collected 
from the worst among the discharged tenants of our penitentiaries? 
Have they invaded our settlements, driven off the inhabitants, and 
established themselves in an unrighteous possession, of which they are 
now about to be divested ? What is their character, and what is their 
crime, that their lands are to be divided, and their persons and families 
to be put beyond the protection of the law 1 

If they were CafTres, or Hottentots, they should be dealt with kindly; 
and should be compassionated in their ignorance and degradation. If 
some of them were Ishmaelites and renegadoes, they should be tried in 
a regular manner. The innocent should not be punished with the 
guilty. The guilty should not be punished without a trial ; and 
neither the innocent nor the guilty, should be delivered over to private 
malice. 

How would an intelligent foreigner, a German, a Frenchman, or an 
Englishman, be astonished to learn, that the Cherokees are neither 
savages, nor criminals ; — that they have never encroached upon the 
lands of others ;— that their only offence consists in the possession of j 
lands, which their neighbors covet ; — that they-are peaceful agricultu- j 
rists, better clothed, fed, and housed, than many of the peasantry, in i 
most civilized countries ; — that they have sustained diplomatic rela- 
tions with the whites, at different periods, from the first settlement of \ 
the contiguous territory by Europeans ; — that these relations have 
ripened into a firm and lasting peace, which has not been broken by a 
single act of hostility for forty years ; — that the peace thus cemented 
is the subject of numerous treaties, the bases of which are, a sove- 
reignty of the Cherokees, limited, in certain respects, by express 
stipulations, and a guaranty, on the part of the United States, of pro- 
tection and inviolate territorial limits ; — that tiie treaties have been the 
foundation of numerous legal enactments for the protection of the \ 
weaker party, whose title has been pronounced, by the highest tribu- \ 
nal in our country, to be worthy of the Respect of all courts, till it be 
legitimately extinguished ; — that the Cherokees are not charged with 
having broken their engagements, or done any thing to forfeit the 



89 



guaranty, which they had received as the indispensable condition of 
their grants to the United States ; — that they have always been called 
brothers and children by the President of the United States, and by all 
other public functionaries, speaking in the name of the country ;— that 
they have been encouraged and aided, in rising to a state of civiliza- 
tion, by our national government, and benevolent associations of indi- 
viduals ; — that one great motive, presented to their minds by the 
government, has uniformly been the hope and expectation of a perma- 
nent residence, as farmers and mechanics, upon the lands of their 
ancestors, and the enjoyment of wise laws, administered by them- 
selves, upon truly republican principles ; — that, relying upon these 
guaranties, and sustained by such a hope, and aided in the cultivation 
of their minds and hearts by benevolent individuals stationed among 
them at their own request, and partly at the charge of the general 
government, they have greatly risen in their character, condition, and 
prospects ; — that they have a regularly organized government of their 
own, consisting of legislative, judicial, and executive departments, 
formed by the advice of the third President of the United States, and 
| now in easy and natural operation ; — that a majority of the people can 
read their own language, which was never reduced to writing till less 
than seven years ago, and never printed, till within less than two 
years ; — that a considerable number of the young, and some of the 
older, can read and write the English language ; — that ten or twelve 
schools are now attended by Cherokee children ; — that, for years past, 
unassisted native Cherokees have been able to transact public business, 
by written communications, which, to say the least, need not fear a 
comparison, in point of style, sense, and argument, with many com- 
munications made to them, by some of the highest functionaries of 
our national government ; — that these Cherokees, in their treatment 
of whites, as in their intercourse with each other, are mild in their 
manners, and hospitable in their feelings and conduct; — and, to 
crown the whole, that they are bound to us by the ties of Christianity 
which they profess, and which many of them exemplify as members of 
regular Christian churches. 

These are the men, whose country is to be wrested from them, and 
who are to be brought under the laws of Georgia without their own 
consent. These civilized and educated men ; — these orderly members 
of a society, raised, in part by the fostering care of our national gov- 
ernment, from rude materials, but now exhibiting a good degree of 
symmetry and beauty ; — these laborious farmers, and practical repub- 
licans; — these dependent allies, who committed their all to our good 
faith, on the "guaranty" of Gen. Washington, the "assurance" of 
Mr. Jefferson, and the re-assurance of Gen. Jackson and Mr. Calhoun, 
sanctioned, as these several acts were, by the Senate of the United 
| States ; — these " citizens of the Cherokee nation," as we called them 
in the treaty of Holston ; — these fellow Christians, regular members 
of Moravian, Presbyterian, Baptist, and Methodist churches, felloic- 
[ citizens with the saints and of the household of God, are to be suddenly 
, brought under the laws of Georgia, according to which they can be 
neither witnesses, nor parties, in a court of justice. Under the laws, 
j did I say? It is a monstrous perversion to call such a state of things 
, living under law. They are to be made outlaws on the land of their 
12 



90 



fathers ; and, in this condition, to be allowed the privilege of choosing 
between exile and chains. 

But who are the men, that impose so fearful an alternative 1 and 
what is the government, that hesitates to redeem its pledge ? Is it 
some rotten Asiatic despotism, sinking under the crimes and corrup- 
tions of by-gone centuries, feeling no responsibility, and regarding no 
law of morality or religion 1 Not so. It is a government, which sprung 
into existence with the declaration " that all men are created equal ; 
that they are endowed by their Creator with certain unalienable rights ; 
that among these are life, liberty, and the pursuit of happiness.'' 
From a government thus established, this flagrant wrong is apprehend- 
ed ; and from a people, who boast that they are the freest and most 
enlightened community on earth ; who insist on the right of every 
community to govern itself ; and who abjure the very idea of foreign 
dictation. 



No. XXIII. 

Views of benevolent individuals — Supposed inconvenience — Georgia not deprived of her 
rights — The Cherokee country not of great value — No cause of alarm from imperium 
in imperio — Indian tribes in the older States — Terms, on which the Indian sovereignties 
should be extinguished — The consent of the Indians — The consent of the United States — 
Chancellor Kent's decision, with reference to principles of public morality. 

There are in our country not a few benevolent individuals, who 
cheerfully admit that the Indians have a perfect right to the possession 
of their country ; that we are bound by treaties to defend this right ; 
and that the forcible seizure and division of their lands would be an 
act of enormous injustice ; who yet suppose, that the continuance of 
the Cherokees, where they now are, would be extremely inconvenient 
to Georgia and to the United States. These persons are inclined to 
think, that the inconvenience will be found so great, as to amount to I; 
a sort of moral necessity ; and that, therefore, the sooner the Chero- 
kees consent to a removal, the better it will be for them, as well as for ! 
their white neighbors. { 

An acquaintance with the real state of facts would convince these 
benevolent individuals, that they are quite mistaken, in regard to the 
best manner of promoting the permanent good of all parties. The in- h 
convenience, which appears so formidable, is altogether imaginary. I 
It will utterly vanish, at the very moment when the State of Georgia, i 
and other white neighbors of the Indians, shall be inclined to do what : 
is right. If the disposition to take the property of the weak and de- 
fenceless and convert it to our own use, is to be dignified with the 
name of moral necessity, we should be aware that such a doctrine 
subverts the very foundation of law and order. 

It is urged, that if the Cherokees remain where they are, Georgia | 
is deprived of a valuable portion of land within her chartered limits. : 
But this is an abuse of language. Georgia is deprived of nothing. 
If the Cherokees are compelled to remove, either by physical force, 



91 



I or what is called moral necessity, they are deprived of their inherit- 
| ance ; but if they remain, there is no deprivation on either side. An 
I opulent landholder might as well complain, that he was deprived of 
I some excellent land, which would be very convenient to him, and 
,] which he expected to have acquired long ago for a trifle ; but, to his 
great surprise, the rightful owner refused to sell. This is a species 
of privation to which covetous men have always been exposed, in every 
part of the world. They cannot get all the land that lies contiguous 
j to their possessions ; and the larger their domains are, the greater in- 
conveniences do they feel; for the more extensive their limits, the 
| greater is the number of obstinate neighbors, with whom they come 
j into contact. What an inconvenient world do we live in ! And what 
j a calamity it is, that there should be so many of the poor, the weak, 
j and the defenceless, who are in perpetual danger of being trodden 
j under the feet of their belters ! 

| Thus it is, that the insatiable desires of men create imaginary 
j troubles. The State of Georgia, exclusive of the Cherokee country, 
! has only six or seven souls, one half of whom are blacks, to each 
| square mile ; that is, omitting merchants, traders, and mechanics, less 
than one white family to two square miles of land. The most remote 
part of her chartered limits is still in the rightful occupancy of the 
Cherokees. The land of this portion is far less capable of lucrative 
cultivation, than the State is generally. I speak not without some 
knowledge on the subject ; and I have made inquiries of others. Let 
the representatives in congress from Georgia, if they are personally 
' acquainted with the quality of the land within the Cherokee limits, 
state frankly how large a part is composed of mountains and barren 
tracts, which a Georgian would pronounce utterly worthless; how large 
a part would produce but moderate crops ; and how small a fraction 
would be considered land of a very good quality. Let these things be 
stated, and it will be found that the Cherokee country is not by any 
means so valuable, as has commonly been supposed. 

It can make no odds as to title, whether the soil be as fertile as the 
banks of the Ganges, or as barren as the sands of Arabia ; but it 
should be known, that the value of the property here at stake is 
nothing, compared with the feelings of the Cherokees ; not to mention 
the importance of the principles to be decided. Though the Chero- 
kee country is in a healthful climate, and is a pleasant and comfortable 
residence for the original inhabitants, the far greater part of it would 
be left untouched for many years, if exposed to sale in the same man- 
ner as the public lands generally of the United States. The interest 
of Georgia, therefore, is inconsiderable ; nor would the prosperity of 
that State be materially affected, if another acre were never to be 
added to the territory now in her actual possession. 

It has been alleged, that great inconveniences will be experienced, 
by having an imperium in imperio ; — a separate, independent commu- 
nity surrounded by our own citizens. But in what do these frightful 
inconveniences consist? A little pacific community of Indians, living 
among the mountains, attending to their own concerns, and treating 
all who pass through their borders with kindness and hospitality, is 
surely no very great cause of alarm. If there were a territory in pos- 
session of a powerful and hostile nation, and in the immediate vicinity 



92 



of our white settlements, where our rivals and enemies might shelter 
themselves, while plotting against our peace, and where fugitives from 
justice could find a refuge, there might be some reason for apprehen- 
sion ; though even these circumstances would never excuse a viola- 
tion of treaties. But the Cherokees can never have any interests 
adverse to our natioual prosperity. They have solemnly agreed to 
live under our protection, and to deliver up fugitives from justice. 
We have by treaty a free navigation of their waters, and a free passage 
through their country. What more can we reasonably desire? 

But if there were an inconvenience to us, as a consequence of there 
having beon aboriginal inhabitants on this continent, how are these 
inhabitants to blame? If we are incommoded, by having a little 
Indian community in the midst of us, we brought the evil upon our- 
selves by pushing our settlements into the wilderness, in such a man- 
ner as to surround our red brethren. They did not compel us, nor 
allure us, nor invite us, to such a course of proceeding ; and they are 
not under the slightest obligation to give up their national existence 
to save us from this supposed inconvenience, though it were many 
times greater than it has ever been alleged to be. 

The dangers from an imptrium in imperio are, in the case before us, 
altogether chimerical. Among our own citizens, we have governments 
within governments, of all sizes from a school district upwards ; and 
all sorts of corporations with limited powers. In Great Britain, there 
is a vast diversity of customs, rights, franchises, and exemptions, 
peculiar to different towns, boroughs, cities, and counties, and to the 
larger divisions of the realm. Germany is almost wholly composed of 
smaller communities, each possessing a limited sovereignty ; and many 
of them conducting their municipal affairs according to their own 
discretion. But, (which is more immediately to the purpose,) there 
have been separate communities of Indians, in most of the older mem- 
bers of our confederacy, from the first settlement of the country ; and 
no disastrous consequences have followed. At the present day there 
are, in the State of New York, several small tribes of Indians, living 
under their own laws, and not partaking of the rights of citizens of the 
United States. They have been declared, by the highest legal tribu- 
nal in that State, to be " not citizens, but distinct tribes, or nations, 
living under the protection of the government." The opinion of 
Chancellor Kent, which I never saw till all the preceding numbers 
were in the printer's hands, supports the positions which I endeavored 
to establish, in the examination of treaties. Yet the State of New 
York does not appear to suffer, from having permitted these tribes to 
remain on their own land ; — to hold it in common ; — to remain exempt 
from taxes, military duty, and every kind of public burden ; — and to 
sustain a qualified sovereignty, though surrounded by white neighbors. 

If the time shall ever arrive, when these sovereignties may become 
extinct to the mutual advantage of the Indians and whites, the manner 
of bringing about such a change will demand the efforts of the most 
disinterested men in our country, and the counsels of the wisest. In 
the mean time, let us hear the advice of Chancellor Kent on the 
subject. 



93 



" When the time shall arrive for us to break down the partition wall between us 

I and them, and to annihilate the political existence of the Indians as nations and 

! tribes, I trust we shall act fairly and explicitly, and endeavor to effect it with the 

I full knowledge and assent of the Indians themselves, and with the most scrupulous 

I regard to their weaknesses and prejudices, and with the entire approbation of the 

I government of the United States. I am satisfied that such a course would be 

j required by prudence, and would become necessary, not only for conscience' sake, 

i but for the reputation of our justice." Johnson's Reports, vol. 20, p. 717. 

The learned jurist was speaking of the small tribes, in the State of 
j New York, whose domains are now restricted by their own consent to 
tracts of a few miles square, and whose numbers are reduced to a few 
I hundreds. These tribes, having resigned many attributes of sove- 
I reignty which the Cherokees still retain, and living in the midst of a 
I crowded population,, may possibly find it for their interest to abdicate 
j the sovereignty, which still remains to them. In such an event, the 
: chancellor lays it down as indispensable, that the government of New 
I York should ' endeavor to effect the chancre with the full knowledge 
! and assent of the Indians themselves.' This is, indeed, one of the 
! first dictates, which would be obeyed by an upright and honorable 
j mind : but how much more imperative is it in the case of the Chero- 
kees, who number thousands for the hundreds of Oneidas and Sene- 
cas ; — who have a sufficient territory, in which they can secure them- 
selves, under the protecting laws of the United States, from molesta- 
tion on the part of the whites ; — who have a regular government of 
their own, suited to their habits, their condition, and their wants ; — 
and who have their relations with the United States distinctly marked 
and defined by various treaties. If, however, the Cherokees can be 
; persuaded, by fair and honest arguments, that they will be gainers by 
giving up their sovereignty, either now or fifty years hence, let their 
consent be obtained. Let them always be made to feel, that they are 
free agents ; — not in such a sense as the traveller is free, when he de- 
livers up his purse, with a pistol at his breast ; — but as truly free as 
any man, or body of men, who make a contract under the protec- 
tion of law, and on terms of perfect reciprocity. The Cherokees 
should, especially at this juncture, be again assured, that they stand 
behind the shield of the law, — the supreme law of the land — which, in 
a government like ours, should afford a defence not less perfect, and 
certainly much more convenient, than could be afforded by a cordon 
of 150,000 bayonets, or a wall of adamant from the earth to the skies. 

The chancellor says, also, that this change should be effected, (if 
at all,) "with the. most scrupulous regard to the weaknesses and preju- 
dices" of the Indians. He would not justify the use of cold and 
unfeeling language, such as : " Indians must always retire from the 
march of civilization. It is in vain to attempt to save them." He 
would much sooner lament the frauds, and impositions, which have 
| been practised upon them by profligate and interested white men, and 
\ the deficiency of benevolent feeling towards them, on the part of many, 
! who would by no means tolerate fraud or oppression. Justice requires 
j that it should be said, however, that most of the legislatures of the 
( older States framed laws for the protection of Indians, with a most 
j benevolent regard to their good, and on the genuine principles of 
j Christianity. 



94 



The chancellor says again, that the change should be effected, 
* with the entire approbation of the government of the United States." 
This change, be it remembered, had reference to the little tribes, in 
the State of New Yoik. Yet the highest law character in the State, 
delivering an opinion before the Senate, sitting as the highest court of 
law in the State, did not apprehend an impeachment for sacrificing 
State Rights, when he declared, that if an arrangement should be 
made on this subject, it should be made <( toith the entire approbation 
of the government of the United States." And the Senate, consisting 
of thirty members, or more, from all parts of the Stale, supported the 
reasoning of the chancellor, with but a single dissenting vote. How 
different a spirit is here, from that which prevails in Georgia ! 

At the close of the paragraph, which I have quoted, the chancellor 
recommends this course, not only as the most prudent course, and 
" not only for conscience' sake, hut for the reputation of our justice." 
Whoever fears God, or regards man ; — whoever possesses an enlight- 
ened conscience and feels his accountability to his Maker, or wishes 
to deserve the respect and confidence of good men, and the gratitude 
of after times ; — such a man, says this learned judge in effect, will 
take heed, that he deals kindly and justly by the Indians. 

Hamilton, who is now admitted by all parties to have been an illus- 
trious statesman, and to have felt deeply for the honor of his country, 
said respecting treaties, that they are " contracts with foreign nations, 
which have the force of law, but derive it from the obligations of good 
faith." [Federalist, No. 75.] He reckoned, as among the qualifica- 
tions of those who were to make treaties, " a nice and uniform sensi- 
bility to national character." These qualifications he expected to 
find, in men selected by the legislatures of the several States, as 
representatives of the worth, the dignity, and the character of the 
country, in the highest branch of our national legislature. 

It is one of the most encouraging signs of the present times, that 
public men are made to feel their accountability to the public, and 
their obligation to bring their measures of state within the rules of 
private morality. 1 speak on a large scale, and not with reference to 
a single country ; much less, in regard to a single administration. 
This demand of accountability will ultimately be made by the people 
of every country ; and if rulers, whether kings or presidents, parlia- 
ments or congresses, perpetrate acts in their public character, which 
would be perfidious in a private man, they will be pronounced guilty ; 
and, in cases of great importance, if thus pronounced guilty by the 
voice of dispassionate and intelligent men, their names will be con- 
signed to infamy. 

The great principles of morality are immutable. They bind nations, 
in their intercourse with each other, as well as individuals. On this 
point, I must be indulged with a quotation from Chancellor Kent's 
Commentaries. 

« We ought not therefore to separate the science of public law from that of ethics, 
nor encourage the dangerous suggestion, that governments are not as strictly bound 
by the obligations of truth, justice, and humanity, in relation to other powers, as 
they are in the management of their own local concerns. States, or bodies politic, 
are to be considered as moral persons, having a public will, capable and free to do 
right and wrong, inasmuch as they are collections of individuals, each of whom i 
carries with him, into the service of the community, the same binding law of mo- 
rality and religion, which ought to control hia conduct in private life." Vol. I. p. 2. 



93 

« The law of nations, so far as it is founded on principles of natural law, is equally 
j binding in every age, and upon all mankind. But the Christian nations of Europe., 
■ and their descendants on this side of the Atlantic, by the vast superiority of their 
j attainments in arts, and science, and commerce, as well as in policy and govern- 
! ment ; and, above all, by the brighter light, the more certain truths, and the more 
j definite sanctions, which Christianity has communicated to the ethical jurisprudence 
j of the ancients, have established a law of nations peculiar to themselves." p. 3. 

Christianity, then, is the basis of the present law of nations. 
Another learned judge has recently declared, on a public and 
| solemn occasion, that Christianity is a part of the common law. 

" One of the beautiful boasts of our municipal jurisprudence is, that Christianity is 
a part of the common law, from which it seeks the sanctions of its rights, and by 
I which it endeavors to regulate its doctrines. And, notwithstanding the specious 
j objection of one of our distinguished statesmen, the boast is as true as it is beautiful. 
I There never has been a period, in which the common law did dot recognize Chris- 
tianity as lying at its foundations." Judge Story's Inaugural Discourse, p. 20. 

I If Christianity is the basis of the law of nations and of the common 
! law of the United States, it surely is not out of place, though it should 
| be unnecessary, to remind our lawgivers and judges, that one of the 
I great maxims of Christianity, for the regulation of intercourse among 
men, is, that we should do to others whatever we would desire that they, 
in like circumstances, should do to us. Let the people of Georgia, and 
the people of the United States, seriously reflect, whether they should 
be willing to receive the same treatment, with which the Cherokees 
are threatened. Would they be content to go into exile, or to come 
under the laws of a foreign state, with the studied premonition that 
! they could be neither witnesses, nor parties, in a court of justice ? 

Let the appeal be made to conscience; and unless the conscience be 
! buried under impenetrable ignorance, or seared as with a hot iron, the 
answer cannot be doubtful. 



No. XXIV. 

Plan for the removal of the Indians — Objections to it — Invented for the benefit of the whites 
— It speaks too much of generosity, too little of justice — It is visionary — The Indians 
unwilling to remove — No good place can be found for them — Government cannot fulfil 
its promises — There can be no guaranty — Privations of a removal, and quarrels after- 
wards — Where shall they remove next 1 — If removed, the Indians will not confide 
in the government — Conclusion. 

I have now arrived at my closing number; in which I propose to ex- 
amine the plan for the removal of the Indians beyond the Mississippi. 

This plan, so far as its principles have been developed and sanc- 
tioned by the government, is as follows : — 

Congress will set apart a tract of country west of the Arkansas ter- 
! ritory, perhaps 150 miles long and 100 miles broad, and will guaranty 
; it as the perpetual residence of Indians. Upon this tract will be col- 
j lected numerous tribes, now resident in different States and Territo- 
| ries. The land will be divided among tribes and individuals, as Con- 
I gress shall direct. The Indians, thus collected, will be governed by 
white rulers ; that is, by agents of the United States ; till the tffhe 
| shall arrive, when they can be safely trusted with the government of 



96 

themselves. At present they are to be treated as children, and guarded 
with truly paternal solicitude. The United States will bear the ex- 
pense of a removal ; and will furnish implements of agriculture, the 
mechanical arts, schools, and other means of civilization. Intruders 
will be excluded. Ardent spirits will not be allowed to pass the line 
of demarkation. And, as a consequence of all these kind and pre- 
cautionary measures, it is supposed that the Indians will rise rapidly 
in various respects ; that they will be contented and happy in their 
new condition ; and that the government will merit and receive the 
appellation of benefactors. This is the plan ; and the following con- 
siderations appear to my mind in the light of objections to it : — 

1. It is a suspicious circumstance, that the wishes and supposed in- 
terests of the whites, and not the benefit of the Indians, afford all the 
impulse, under which Georgia and her advocates appear to act. The J 
Indians are in the way of the whites ; they must be removed for the 
gratification of the whites ; and this is at the bottom of the plan. But 
if the Cherokees had been cheerfully admitted, by the inhabitants of 
Georgia, to possess an undoubted right to the permanent occupation r 
of their country ; and if this admission were made in terms of kind- 
ness, and with a view to good neighborhood, according to Mr. Jeffer- 
son's promise embodied in a treaty ; — if such had been the state of 
things, we should have heard nothing of the present scheme. Is it [ 
likely that a plan conceived in existing circumstances, and with the 
sole view of yielding to unrighteous and unreasonable claims, can be 
beneficial in its operation upon the Indians? A very intelligent 
member of Congress from the west declared to the writer of these 
numbers, that the design of the parties most interested was, to destroy 
the Indians, and not to save them. I do not vouch for the accuracy 
of this opinion ; but it is an opinion not confined to one, or two, or 
twenty, of our public men. At any rate there is no uncharitableness 
in saying, that Georgia is actuated by a desire to get the lands of the 
Cherokees ; for she openly avows it. As little can it be doubted, that 
the plan in question is suited to accomplish her desires. It is not 
common, for a party deeply interested, to devise the most kind and 
benevolent way of treating another party, whose interests lie in a 
different direction. 

2. The plan is to be distrusted, because its advocates talk much of 
future generosity and kindness ; but say nothing of the present obli- 
gations of honor, truth, and justice. What should we say, in private life, 
to a man, who refused to pay his bond, under hand and seal, — a bond, 
which he did not dispute, and which he had acknowledged before [ 
witnesses a hundred times over, — and yet should ostentatiously profess L 
himself disposed to make a great many handsome presents to the j 
obligee, if the- obligee would only be so discreet as to deliver up the . 
bond ? Would it not be pertinent to say, " Sir, be just before you are 
generous ; — first pay your bond, and talk of presents afterwards." 

Let the government of the United States follow the advice given by 
Chancellor Kent to the State of New York. Let our public functiona- t 
ries say to the Cherokees ; " The United States are bound to you. 
Tjie stipulations are plain ; and you have a perfect right to demand 
their literal fulfilment. Act your own judgment. Consult your own 
interests. Be assured that we shall never violate treaties." If this > 



97 



language were always used ; if acknowledged obligations were kept in 
front of every overture ; there would be less suspicion attending ad- 
vice, professedly given for the good of the Indians. It is not my 
province to question the motives of individuals, who advise the Chero- 
kees to remove. No doubt many of these advisers are sincere. Some 
of them are officious ; and should beware how they obtrude their 
opinions, in a case of which they are profoundly ignorant, and in a 
manner calculated only to weaken the righteous cause. All advisers, 
of every class, should begin their advice with an explicit admission of 
present obligations. 

3. The plan in question appears to me entirely visionary. There 
has been no experience among men to sustain it. Indeed, theoretical 
plans of government, even though supposed to be founded on experi- 
ence gained in different circumstances, have uniformly and utterly 
failed. So wise and able a man as Mr. Locke was totally incompe- 
tent, as the experiment proved, to form a government for an American 
colony. But what sort of a community is to be formed here ? Indians 
of different tribes, speaking different languages, in different states of 
civilization, are to be crowded together under one government. They 
have all heretofore lived under the influence of their hereditary cus- 
toms, improved, in some cases, by commencing civilization ; but they 
are now to be crowded together, under a government unlike any 
other that ever was seen. Whether congress is to be employed in di- 
gesting a municipal code for these congregated Indians, and in mend- 
ing it from session to session ; or whether the President of the United 
States is to be the sole legislator ; or whether the business is to be 
delegated to a civil or military prefect, we are not told. What is to 
be the tenure of land ; — what the title to individual property ;■ — what 
the rules of descent ; — what the modes of conveyance ; — what the re- 
dress for grievances ; — these and a thousand other things are entirely 
unsettled. Indeed, it is no easy matter to settle them. Such a man 
as Mr. Livingston may form a code for Louisiana, though it requires 
uncommon talents to do it. But ten such men as he could not form a 
code for a heterogeneous mixture of Indians. 

If this embarrassment were removed, and a perfect code of aborigi- 
nal law were formed, how shall suitable administrators be found ? Is 
it probable that the agents and sub-agents of the United States will 
unite all the qualifications of Solon and Howard ? Would it be strange 
if some of them were indolent, unskilful, partial, and dissolute? and if 
the majority were much more intent on the emoluments of office, than 
on promoting the happiness of the Indians? One of the present In- 
dian agents, a very respectable and intelligent man, assured me, that 
the plan for the removal of the Indians was altogether chimerical, and, 
if pursued, would end in their destruction. He may be mistaken ; but 
his personal experience in relation to the subject is much greater than 
that of any person, who has been engaged in forming or recommending 
the plan. 

4. The four southwestern tribes are unwilling to remove. They 
ought not to be confounded with the northern Indians, as they are in 
very different circumstances. The Cherokees and Choctaws are rap- 
idly improving their condition. The Ohickasaws have begun to follow 
in the same course. These tribes, with the Creeks, are attached to 

13 



98 



their native soil, and very reluctant to leave it. Of this the evidence 
is most abundant. No person acquainted with the actual state of things 
can deny, that the feelings of the great mass of these people, apart 
from extraneous influence, are decidedly and strongly opposed to a 
removal. Some of them, when pressed upon the subject, may remain 
silent. Others, knowing how little argument avails against power, 
may faintly answer, that they will go if they must, and if a suitable 
place can be found for them. At the very moment, when they are say- 
ing this, they will add their strong conviction, that no suitable place 
can be found. In a word, these tribes will not remove, unless by com- 
pulsion, or in the apprehension of force to be used hereafter. 

5. The Indians assert, that there is not a sufficient quantity of good 
land, in the contemplated tract, to accommodate half their present 
numbers ; to say nothing of the other tribes to be thrust into their 
company. Even the agents of the United States, who have been em- 
ployed with a special view to make the scheme popular, admit that 
there is a deficiency of wood and water. Without wood for fences 
and buildings, and for shelter against the furious northwestern blasts of 
winter, the Indians cannot be comfortable. Without running streams, 
they can never keep live stock ; nor could they easily dig wells and 
cisterns for the use of their families. The vast prairies of the west will 
ultimately be inhabited. But it would require all the wealth, the en- 
terprize, and the energy, of Anglo-Americans, to make a prosperous 
settlement upon them. Nor, if the judgment of travellers is to be re- 
lied on, will such a settlement be made, till the pressure of population 
renders it necessary. The most impartial accounts of the country, to 
the west of Missouri and Arkansas, unite in representing it as a bound- 
less prairie, with narrow strips of forest trees, on the margin of rivers. 
The good land, including all that could be brought into use by partially 
civilized men, is stated to be comparatively small. 

6. Government cannot fulfil its promises to emigrating Indians. It 
is incomparably easier to keep intruders from the Cherokees where 
they now are, than it will be to exclude them from the new country. 
The present neighbors of the Cherokees are, to a considerable extent, 
men of some property, respectable agriculturists, who would not think 
of any encroachment, if the sentence of the law were pronounced firmly 
in favor of the occupants of the soil. Stealing from the Indians is by 
no means so common, as it was fifteen years ago. One reason is, that 
the worst class of white settlers has migrated farther west. They are 
stated, even now, to hover around the emigrant Creeks, like vultures. 
It may be laid down as a maxim, that so long as Indians possess any 
thing, which is an object of cupidity to the whites, they will be exposed 
to the frauds of interested speculators, or the intrusion of idle and 
worthless vagrants : and the farther removed the Indians are from the 
notice of the government, the greater will be their exposure to the arts, 
or the violence, of selfish and unprincipled men. 

Twenty years hence, Texas, whether it shall belong to the United 
States or not, will have been settled by the descendants of Anglo- 
Americans. The State of Missouri will then be populous. There will 
be great roads through the new Indian country, and caravans will be 
passing and repassing in many directions. The emigrant Indians will 
be denationalized, and will have no common bond of union. Will it 



99 



be possible, in such circumstances, to enforce the laws against in* 
truders ? 

7. If the Indians remove from their native soil, it is not possible that 
they should receive a satisfactory guaranty of a new country. If a 
guaranty is professedly made by a compact called a treaty, it will be 
[| done at the very moment that treaties with Indians are declared not to 
I be binding, and for the very reason that existing treaties are not strong 
I enough to bind the United States. To what confidence would such 
[ an engagement be entitled ? 

It is now pretended that President Washington, and the Senate of 
j 1790, had no power to guaranty to Indians the lands on which they 
were born, and for which they were then able to contend vigorously at 
! the muzzle of our guns. Who can pledge himself, that it will not be 
! contended, ten years hence, that President Jackson, and the Senate of 
| 1830, had no constitutional power to set apart territory for the perma- 
nent residence of the Indians ? Will it not then be asked, Where is 
the clause in the constitution, which authorized the establishment of a 
! new and anomalous government, in the heart of North America? The 
j constitution looked forward to the admission of new States into the 
! Union ; but does it say any thing about Indian States? Will the men 
| of 1840, or 1850, be more tender of the reputation of President Jack- 
son, than the men of the present day are of the reputation of President 
Washington ? Will they not say, that the pretended treaty of 1^30, 
(if a treaty should now be made,) was an act of sheer usurpation ? 
that it was known to be such at the time, and was never intended to 
be kept ? that every man of sense in the country considered the re- 
moval of 1830 to be one of the few steps, necessary to the utter exter- 
mination of the Indians? that the Indians were avowedly considered 
as children, and the word treaty was used as a plaything to amuse 
them, and to pacify grown up children among the whites ? 

If the design is not to be accomplished by a treaty, but by an act of 
Congress, the question recurs, Whence did Congress derive the con- 
stitutional power to make an Indian State, 150 miles long and 100 
miles broad, in the heart of this continent? Besides, if Congress has 
the constitutional power to pass such an act, has it not the power of 
repealing the act? Has it not also the power of making a new State 
of whites, encircling this Indian community, and entitled to exercise 
the same power over the Indians, which the States of Alabama and 
Mississippi now claim the right of exercising over the four southwestern 
tribes ? Will it be said, that the contemplated Indian community will 
have been first established, and received its guaranty, and that there- 
fore Congress cannot inclose the Indians in a new State ? Let it be 
remembered, that the Creeks and Cherokees received their guaranty 
about thirty years before the State of Alabama came into existence ; 
and yet that State claims the Indians within its chartered limits, as 
being under its proper jurisdiction ; and has already begun to enforce 
the claim. Let, not the government trifle with the word guaranty. If 
the Indians are removed, let it be said, in an open and manly tone, 
that they are removed because we have the power to remove them, 
and there is a political reason for doing it ; and that they will be re- 
moved again, whenever the whites demand their removal, in a style 



100 



sufficiently clamorous and imperious to make trouble for the govern- 
ment. 

8. The constrained migration of 60,000 souls, men, women and 
children, most of them in circumstances of deep poverty, must be at- 
tended with much suffering. 

9. Indians of different tribes, speaking different languages, and all 
in a state of vexation and discouragement, would live on bad terms 
with each other, and quarrels would be inevitable. 

10. Another removal will soon be necessary. If the emigrants be- 
come poor, and are transformed into vagabonds, it will be evidence 
enough, that no benevolent treatment can save them, and it will be 
said they may as well be driven beyond the Rocky Mountains at once. 
If they live comfortably, it will prove, that five times as many white 
people might live comfortably in their places. Twenty five years 
hence, there will probably be 4,000,000 of our population west of the 
Mississippi, and fifty years hence not less than 15,000,000. By that 
time, the pressure upon the Indians will be much greater from the 
boundless prairies, which must ultimately be subdued and inhabited, 
than it would ever have been from the borders of the present Cherokee 
country. 

11. If existing treaties are not observed, the Indians can have no 
confidence in the United States. They will consider themselves as 
paupers and mendicants, reduced to that condition by acts of gross 
oppression, and then taken by the government, and stowed away in a 
crowded workhouse. 

12. The moment a treaty for removal is signed by any tribe of In- 
dians, on the basis of the contemplated plan, that moment such tribe is 
denationalized; for the essence of the plan is, that all the tribes shall 
come under one government, which is to be administered by whites. 
There will be no party to complain, even if the pretended treaty should 
be totally disregarded. A dead and mournful silence will reign ; for 
the Indian communities will have been blotted out forever. Individu- 
als will remain to feel that they are vassals, and to sink unheeded to 
despondency, despair, and extinction. 

But the memory of these transactions will not be forgotten. A bitter 
roll will be unfolded, on which Mourning, Lamentation, and Woe to 
the People of the United States will be seen written in characters, 
which no eye can refuse to see. 

Government has arrived at the bank of the Rubicon. If our rulers 
now stop, they may save the country from the charge of bad faith. If 
they proceed, it will be known by all men, that in a plain case, without 
any plausible plea of necessity, and for very weak and unsatisfactory 
reasons, the great and boasting Republic of the United States of North 
America incurred the guilt of violating treaties ; and that this guilt 
was incurred when the subject was fairly before the eyes of the Ameri- 
can community, and had attracted more attention than any other public 
measure since the close of the last war. 

In one of the sublimest portions of Divine Revelation, the following 
words are written : 

Cursed be he, that removeth his neighbor's landmark : and all the 
people shall say, Amen. 



101 



Cursed be he, that maketh the blind to wander out of the way : and 
all the people shall say, Amen. 

Cursed be he that perverteth the judgment of the stranger, fatherless, 
and loidow : and all the people shall say, Amen. 

Is it possible that our national rulers shall be willing to expose 
themselves and their country to these curses of Almighty God ? 
Curses uttered to a people, in circumstances not altogether unlike 
our own 1 Curses reduced to writing by the inspired lawgiver, for the 
terror and warning of all nations, and receiving the united and hearty 
Amen of all people, to whom they have been made known 1 

It is now proposed to remove the landmarks, in every sense ; — to 
disregard territorial boundaries, definitely fixed, and for many years 
respected ; — to disregard a most obvious principle of natural justice, 
in accordance with which the possessor of property is to hold it, till 
some one claims it, who has a better right ; — to forget the doctrine of 
the law of nations, that engagements with dependent allies are as 
rigidly to be observed, as stipulations between communities of equal 
power and sovereignty ; — to shut our ears to the voice of our own 
sages of the law, who say, that Indians have a right to retain possession 
of their land and to use it according to their discretion, antecedently 
to any positive compacts ; and, finally, to dishonor Washington, the 
Father of his country, — to stultify the Senate of the United States 
during a period of thirty-seven years, — to burn 150 documents, as yet 
preserved in the archives of State, under the denomination of treaties 
with Indians, and to tear out sheets from every volume of our national 
statute-book and scatter them to the winds. 

Nothing of this kind has ever yet been done, certainly not on a 
large scale, by Anglo-Americans. To us, as a nation, it will be a 
new thing under the sun. We have never yet acted upon the princi- 
ple of seizing the lands of peaceable Indians, and compelling them to 
remove. We have never yet declared treaties with them to be mere 
waste paper. 

Let it be taken for granted, then, that law will prevail. " Of law," 
says the judicious Hooker, in strains which have been admired for 
their beauty and eloquence ever since they were written, — " Of law 
there can be no less acknowledged, than that her seat is the bosom 
of God ; her voice the harmony of the world. All things in heaven 
and earth do her homage ; the very least as feeling her care, and the 
greatest as not exempted from her power. Both angels and men, and 
creatures of what condition soever, each in different sort and order, 
yet all with uniform consent, admiring her as the mother of their 
peace and joy." 



APPENDIX. 



THE SECRETARY OF WAR TO THE CHEROKEE DELEGATION. 

Department of War, April 18, 1829. 
To Messrs, John Ross, Richard Taylor, Edward Ounter, and William S. Coody, Cherokee 

Delegation, 

Friends and Brothers : Your letter of the 17th of February, addressed to the late 
Secretary of War, has been brought to the notice of this Department, since the commmuni- 
cation made to you on the 11th inst. 5 and having conversed freely and fully with the Presi- 
dent of the United States, I am directed by him to submit the following as the views which 
are entertained, in reference to the subjects which you have submitted for consideration. 

You state that u the Legislature of Georgia, in defiance of the laws of the United States, 
and the most solemn treaties existing." have extended a jurisdiction over your nation, to take 
■effect in June 1830. That "your nation had no voice in the formation of the confederacy of 
the Union, and has ever been unshackled with the laws of individual Stales, because inde- 

f>endenl of them ;" and that consequently this act of Georgia is to be viewed " in no other 
ight than a wanton usurpation of power, guaranteed to no State, neither by the common 
Saw of the land, nor by the laws of nature." 

To all this there is a plain and obvious answer, deducible from the known history of the 
country. During the war of the Revolution, your Nation was the friend and ally of Great 
Britain 5 a power which then claimed entire sovereignty within the limits of what constituted 
ihe thirteen United States. By the Declaration of Independence, and, subsequently, the 
treaty of 1783, all the rights of sovereignly pertaining to Great Britain became vested re- 
spectively in the original States of the Union, including North Carolina and Georgia, within 
whose territorial limits, as defined and known, your nation was ihen situated. If as is the 
■case, you have been permitted to abide on your own lands from that period to the present, 
-enjoying the right of soil and privilege to hunt, it is not thence to be inferred, that this was 
any thing more than a permission growing out of compacts with your nation ; nor is it a cir- 
cumstance whence now to deny to those States the exercise of their original sovereignty. 

In the year 1785, three years after the Independence of the States, which compose this 
Union, had been acknowledged by Great Briiain, a treaty at Hopewell was concluded with 
jour nation by the United Stales. The emphatic language it contains cannot be mistaken, 
commencing as follows : — " The commissioners plenipotentiary of the United Stales in 
Congress assembled, give peace to all the Cherokees, and receive them into favor and pro- 
tection of the United Stales of America." It proceeds then to allot and to define your limits 
and your hunting grounds. You were secured in the privilege of pursuing the game, and 
from encroachments by the whites. No right, however, save a mere possessory one, is, by 
the provisions of the treaty of Hopewell, conceded to your nation. The soil, and the use of 
it were suffered to remain with you, while the sovereignty abided precisely where it did be- 
fore, in those States within whose limits you were situated. 

Subsequent to this, your people were at enmity with the Lbiited States, and waged a war 
upon our frontier settlements; a durable peace was not entered into with you until 1791. At 
that period a good understanding obtained, hostilities ceased, and by the treaty made and 
concluded, your nation was placed under the protection of our Government, and a guaranty 
given, favorable to the occupancy and possession of your country. But the United States, 
always mindful of the authority of the States, even when treating for what was so much de- 
sired, peace with their red brothers, forbore to offer a guaranty adverse to the sovereignty of 
Georgia. They could not do so ; they had not the power. 

At a more recent period, to wit, in 1802, the Slate of Georgia, defining her own proper 
limits, ceded to the United Slates all her western territory upon a condition, which was 
accepted, "that the United Slates shall, at their own expense, extinguish for the use of 
Georgia, as early as the same can be peaceably obtained on reasonable terms, the Indian 
title to all the lands within the State of Georgia." She did not ask the military arm of the 
Government to be employed, but in her mildness and forbearance, oi\\y, that the soil might 
be yielded to her, so soon as it could peaceably be obtained, and on reasonable terms. In 
relation to sovereignty, nothing is said or hinted at in the compact; nor was it necessary or 
even proper, as both the parties to the agreement well knew that it was a right which 
already existed in the State in virtue of the declaration of our independence, and of the 
treaty of 1783 afterwards concluded. 



103 



These things have been made known to you frankly and after the most friendly manner J 
and particularly at the making of the treaty with your nation in 1317, when a portion of your 
people stipulated to remove to the west of the Mississippi ; and yet it is alleged, in your com- 
I munication to this department, that you have been unshackled with the laws of individual 
j Slates, because independent of them." 

The course you have pursued of establishing an independent, substantive government, 
j within the territorial limits of the State of Georgia, adverse to her will and contrary to her 
I consent, has been the immediate cause, which has induced her to depart from the forbearance 
i she has so long practised ; and in virtue of her authority, as a sovereign, independent Slate, 
| to extend over your country her legislative enactments, which she and every State embraced 
in the confederacy, from 1785 to the present time, when their independence was acknowledged 
[ and admitted, possessed the power to do, apart from any authority, or opposing interference 
by the General Government. 

But suppose, and it is suggested merely for the purpose of awakening your better judgment, 
that Georgia cannot, and ought not, to claim the exercise of such power — what alternative is 
then presented? In reply, allow me to call your attention for a moment to the grave charac- 
ter of the course which, under a mistaken view of your own rights, you desire this government 
to adopt. It is no less than an invitation that she shall step forward to arrest the constitutional 
acts of an independent Stale, exercised within her own limits. Should this be done and 
Georgia persist in the maintenance of her rights and her authority, the consequences might 
be that the act would prove injurious to us, and, in all probability, ruinous to you. The sword. 
{ might be looked to as the arbiter in such an interference. — But this can never be done. The 
President cannot and will not beguile you with such an expectation. The arms of this country 
I can never be employed to stay any State of this Union from the exercise of those legitimate 
powers, which attach and belong to their sovereign character. An interference to the extent 
of affording you protection, and the occupancy of your soil, is uhat is\iemanded of the justice 
! of this country, and will not be withheld ; yet in doing this, the right of permitting to you the 
I enjoyment of a separate Government within the limits of a State, and of denying the exercise 
of sovereignty to that State within her own limits, cannot be admitted. It is not within the 
range of powers granted by the Stales to the General Government, and therefore not within* 
its competency to be exercised. 

In this view of the circumstances connected with your application, it becomes proper to 
remark that no remedy can be perceived, except that which frequently heretofore has been 
submitted tor your consideration — a removal beyond the Mississippi, where alone can be 
assured to you protection and peace. It must be obvious to you, and the President has in- 
structed me to bring it to your candid and serious consideration, that to continue where you 
are, within the territorial limits of an independent State, can promise you nothing but inter- 
rupt ! on and disquietude. Beyond the Mississippi your prospects will be different. There you 
| will find no conflicting interests. The United States 7 power and sovereignty, uncontrolled 
by the high authority of Stale jurisdiction, and resting on ils own energies, will be able to say 
to you, in the language of your own nation, " the soil shall be yours, while the trees grow or 
the stream* run." But situated where you now are, he cannot hold to you such language, or 
consent to beguile you by inspiring in your bosoms hopes and expectations which cannot be 
realized. Justice and friendly feelings cherished towards our red brethren of the forest^ 
demand that, in all our intercourse, frankness should be maintained. 

The President desires me to say, that the feelings entertained by him towards your people,, 
are of the most friendly kind ; and that, in the intercourse heretofore, in past times so fre- 
quently had with the chiefs of your nation, he failed not to warn them of the consequences 
which would result to them from residing within the limits of sovereign States. 

He holds to them now no other language than that which he has heretofore employed ; and 
in doing so, feels convinced that he is pointing out that course which humanity and a just re- 
gard for the interests of the Indian will be found to sanction. In the view entertained by him 
of this important matter, there is but a single alternative — to yield to the operation of those 
laws which Georgia claims, and has a right to extend throughout her own limits, or to remove 
and by associating with your brothers beyond the Mississippi, to become again united as one 
nation, carrying along with you that protection which, there situated, it will be in the power 
of the Government to extend. The Indians being thus brought together at a distance from 
their white brothers, will be relieved from very many of those interruptions, which, situated 
as they are at present, are without remedy. The Government of the United States will then 
be able to exercise over them a paternal and superintending care, to happier advantage; to 
stay encroachments, and preserve them in peace and amity with each other; while, with the 
aid of schools, a hope may be indulged that, ere long, industry and refinement will take the 
place of those wandering habits now so peculiar to the Indian character, the tendency of 
which is to impede them in their march to civilization. 

Respecting the intrusions on your lands submitted also for consideration, it is sufficient to 
: remark, that of these the Department had already been advised, and instructions have been 
I forwarded to the Agent of the Cherokees, directing him to cause their removal; and it is 
i earnestly hoped that, on this matter all cause for future complaint will cease, and the order 
i prove effectual. With great respect, your friend, JOHN H. EATON. 

i 
I 



104 



RESOLUTIONS OF THE OLD CONGRESS. 
The following extracts are taken from the proceedings of the Congress of the Revolution, 
the most illustrious body of men, in the judgment of Lord Chatham, that ever assembled to 
deliberate on national affairs. Shall our rulers and our people forget, in the days of our 
power and prosperity, the pledges which were given, and the solemn promises made, in the 
hour of our country's peril ? 

In Congress, June 30, 1775, "Resolved, That the committee for Indian affairs do prepare 
proper talks to the several tribes of Indians, for engaging the continuance of their friendship 
to us, and neutrality in our present unhappy dispute with Great Britain. 

In Congress, July 12, 1775, " Resumed the consideration of the report of the committee 
on Indian affairs, and the same being gone through, was agreed to, as follows : 

" That the securing and preserving the friendship of the Indian nations appears to be a 
subject of the utmost moment to these colonies. 

" That there is too much reason to apprehend that administration [that is, the British gov- 
ernment,] will spare no pains to excite the several nations of Indians to lake up arms against 
these colonies; and that it becomes us to be very active and vigilant in exerting every pru- 
dent means to strengthen and confirm the friendly disposition, towards these colonies, which 
has long prevailed among the northern tribes, and which has been lately manifested by some 
of those to the southward." 

" That the commissioners have power to treat with the Indians, in their respective depart- 
ments, in the name and on behalf of the united colonies, in order to preserve peace and 
friendship with the said Indians, and to prevent their taking any part in the present commo- 
tions." 

In Congress, July 13, 1775, " Ordered, That a talk be prepared for the Indian nations, so 
as to suit the Indians in the several departments. 

In Congress, Sept. 14, 1775, The commissioners for Indian affairs, in the northern de- 
partment, transmitted to the Congress the minutes of a treaty, held with the Six Nations, at 
Albany, in August." 

In Congress, Feb. 5, 1776, " Resolved, That a friendly commerce between the people of 
the united colonies and the Indians, and the propagation of the gospel, and the cultivation of 
the civil arts among the latter, may produce many and inestimable advantages to both ; and 
that the commissioners for Indian affairs be desired to consider of proper places, in their re- 
spective departments, for the residence of ministers and schoolmasters, and report the same 
to Congress." 

In Congress, March 8, 1776, " Resolved, That Indians be not employed as soldiers in the 
armies of the united colonies, before the tribes to which they belong shall, in a national 
council, held in the customary manner, have consented thereunto, nor then, without express 
approbation of Congress." 

In Congress, April 10, 1776, "■ Resolved, That the commissioners for Indian affairs in the 
middle department, or any one of them, be desired to employ, for reasonable salaries, a 
minister of the gospel, to reside among the Delaware Indians, and instruct them in the 
Christian religion ; a schoolmaster to teach their youth reading, writing, and arithmetic ; 
also a blacksmith to do the work of the Indians in the middle department." 

In Congress, May 11, 1776, "Resolved, That the standing committee for Indian affairs be 
directed to take measures for carrying into execution the resolution of the 6th, for holding a 
treaty with the Indians in the different departments, as soon as practicable." 

In Congress, May 27, 1776, " Resolved, That the standing committee for Indian affairs, 
be directed to prepare a speech to be delivered to the Indians, and to procure such articles as 
they judge proper for a present." 

In Congress, Sept. 19, 1776, " Resolved, That it be recommended to the inhabitants of the 
frontiers, and to the officers at all the posts there, to treat the Indians who behave peaceably 
and inoffensively, with kindness and civility, and not to suffer them to be iH used or insulted. 

" As it may be a means of conciliating the friendship of the Canadian Indians, or at least 
of preventing hostilities from them, in some measure to assist the President of Dartmouth 
college, in New Hampshire, in maintaining their youth, who are now there under his tuition, 
and whom the revenues of the college are not, at this time, sufficient to support ; that for 
this purpose, five hundred dollars be paid to the reverend doctor Eleazer Wheelock, Presi- 
dent of the said college." 

In Congress, Oct. 20, 1777, " Resolved, That it be earnestly recommended to the presi- 
dent and assembly of the State of Georgia, to use their utmost exertions to cultivate peace 
and harmony with the Indian nations : and to enable them to effect this salutary purpose, that 
they forthwith enact laws, inflicting severe penalties on such of their inhabitants as may en- 
deavor to provoke a war, which may endanger the State of Georgia, and entail great injury 
and expense on the United States." 

In Congress, Feb. 2, 1778, " Resolved, That the commissioners speak and act in such 
manner as they shall think most likely to obtain the friendship, or, at least, the neutrality of 
the Indians, and that Congress will support the commissioners in any measures they shall 
conceive best calculated to answer these ends." 

In Congress, May 17, 1779, " Resolved, That the commissioners for Indian affairs in the 
northern department, be directed to consult general Washington upon all treaties with the 



Indians, and to govern themselves b)' such instructions as he shall give them, relative to any 
partial or general treaty of peace to be concluded with them." [It would seem that the Old 
Congress was so simple as really to believe, that General Washington had understanding 
sufficient to enable him to decide what was a treaty, and what was not.] 

In Congress, Feb. 'HI, 1780, "Resolved, That the commissioners of Indian affairs in the 
northern department, be authorized and instructed to take such securities from the hostile 
tribes of Indians, to ensure the faithful performance of their engagements with the said com- 
missioners, as seem most conducive to the end proposed, in lieu of hostages." 

In Congress, Oct. 15, 1783, " Resolved, That a convention be held with the Indians resid- 
ing in the northern and middle departments, who have taken up arms against the United 
States, for the purposes of receiving them into the favor and protection of the United States, 
and of establishing boundary lines of property, for separating and dividing the settlements of 
the citizens from the Indian villages and hunting grounds, and thereby extinguishing, as far 
as possible, all occasion for future animosities, disquiet, and contention." 

In Congress, July 15, 1788, " Whereas it is represented to congress, by the delegates of 
the State of Georgia, that the principal parts of the frontiers of that State have been for sev- 
eral years past invaded, and kept in a state of alarm by the Creek Indians : that the fighting 
men of that nation, supposed to amount to not less than six thousand, have been so far insti- 
gated by refugees and fugitive traders, who had formerly escaped from these States and 
taken refuge among" them, as to keep up constant and bloody incursions on the different parts 
of that frontier, and that the settlements of four of the exterior counties are almost entirely 
broken up : 

" Resolved, That the superintendent and commissioners for the southern department be in- 
structed, if they shall find it necessary, to notify to the said Indians, that should they persist 
in refusing to enter into a treaty upon reasonable terms, the arms of the United States shall 
be called forth for the protection of that frontier." 

In Congress, Sept. 1, 1788, " Whereas the United States in congress assembled, by their 
commissioners duly appointed and authorized, did, on the twenty-eighth day of November, 
one thousand seven hundred and eighty-five, at Hopewell, on the Kedwee, conclude articles 
of a treaty with all the Cherokees, and among other things stipulated and engaged by article 
fourth, 'that the boundary allotted to the Cherokees for their hunting grounds, between the 
said Indians and the citizens of the United States, within the limits of the United States of 
America, is and shall be the following, viz [The boundaries are here inserted.] And 
whereas it has been represented to congress, that several disorderly persons settled on the 
frontiers of North Carolina, in the vicinity of Chota, have, in open violation of the said treaty, 
made intrusions upon the said Indian hunting grounds, and committed many unprovoked out- 
rages upon the said Cherokees, who, by the said treaty, have put themselves under the pro- 
tection of the United States, which proceedings are highly injurious and disrespectful to the 
authority of the Union, and it being the firm determination of congress to protect the said 
Cherokees in their rights, according to the true intent and meaning of the said treaty ; the 
United States in congress assembled have therefore thought fit to issue, and they do hereby 
issue, this their proclamation, strictly forbidding all such unwarrantable intrusions, and hos- 
tile proceedings against the said Cherokees ; and enjoining all those who have settled upon 
the said hunting grounds of the said Cherokees, to depart, with their families and effects, 
without loss of time, as they shall answer their disobedience to the injunctions and prohibi- 
tions expressed in this resolution at their peril : 

" Resolved, That the Secretary of War be, and he is hereby directed, to have a sufficient 
number of the troops in the service of the United Slates, in readiness to march from the Ohio, 
to the protection of the Cherokees, whenever congress shall direct the same ; and that he 
take measures for obtaining information of the best routes for troops to march from the Ohio 
to Chota ; and for dispersing among all the white inhabitants settled upon, or in the vicinity 
of, the hunting grounds secured to the Cherokees, by the treaty concluded between them and 
the United States, Nov. 28, 1785, the proclamation of congress of this dale." 

The foregoing proclamation and resolution are, in the highest degree, honorable to the 
Congress of the United States. Measures of a direct!)' opposite character must therefore be 
highly dishonorable. A similar proclamation, followed by a corresponding order from the 
war department, would now afford a perfect shield to the Cherokees. 



AN EXAMINATION OF THE CASES OF FLETCHER vs. FECK, AND 
JOHNSON vs. MTNTOSH. 

The case of Fletcher vf. Peck was decided in the Supreme Court of the United Stales, in 
the year J 810. See Cranclvs Reports, vol. G. This case touches Indian rights but very 
obliquely and incidentally. It was a suit brought by one white man against another, on a 
covenant which related to wild lands in the western part of the chartered limits, of Georgia. 
The Indians were not a party. They had no counsel. The decision of the court was not 
designed to affect them at all. 
\ It was disputed whether Georgia had such a right in lands within her chartered limits, 
| (which land* were occupied by Indians,) as would authorize the State to make a grant of 
I those lands, subject to the Indian title. The Court decided, that the Slate had such a right. 

14 



106 



The calling of this right a seisin in fee, was only a consequence of the habit, which all pro- 
fessional men have, of calling- new tilings by old technical names. The fact is, that the right 
of a community to purchase lands of the Indians, to the exclusion of all other purchasers, has 
but a very slender resemblance to a seisi?i in fee, that is, an estate to a man and his heirs. 
The Court did not think, however, that the substance of a party's defence should be lost, 
merely because he had, in his pleadings, used the old technical words of English law ; and 
applied them in a sense, not in accordance with their original meaning. 

That such is the scope of the two last paragraphs of the opinion, delivered by Chief Justice 
Marshall, will be evident on a moment's reflection. The paragraphs are these : — 

" Some difficulty was produced by the language of the covenant and of the pleadings. Tt 
was doubted whether a State can be seized in fee of lands, subject to the Indian title ; and 
whether a decision, that they were seized in fee, might not be construed to amount to a de- 
cision that their grantee might maintain an ejectment for them, notwithstanding that title. 

" The majority of the Court is of the opinion that the nature of the Indian title, which is 
certainly to be respected by all courts, until it be legitimately extinguished, is not such as to 
be absolutely repugnant to seisin in fee on the part of the State." 

The Court here acknowledged an embarrassment from the language of the covenant and 
pleadings, doubtless alluding to the technical phrase, seisin in fee, and confessed an apprehen- 
sion, that the decision might be construed to mean, that the individuals, to whom the State 
had granted its right, would recover the land from the Indians, by a writ of ejectment, when- 
ever the grantees should bring such a suit. Against such a construction, however, the Court 
effectually guard, by saying, that " the Indian title is certainly to be respected by all courts, 
until it be legitimately extinguished." 

In other words, the Indian title is not in the least affected by this decision. Whenever it 
shall be extinguished, it will be extinguished according to the constitution and laws of the 
United States, and the treaties with the Indians. 

That this is a fair account of the decision, in the case of Fletcher and Peck, so far as re- 
lates to the question now before the public, appears to us perfectly clear. But if we. have 
mistaken the meaning of the Court, we hold ourselves open to conviction, whenever that 
meaning shall be more satisfactorily stated. 

In the mean time, let those who are alarmed for the Indians, because their title to their 
country is " only the right of occupancy ," be comforted with the reflection, that, by virtue of 
this right, the Cherokees may occupy the lands of their fathers till the end of the world, unless 
they shall voluntarily sell these lands to the United States, for the use of Georgia. Their 
right of occupancy reaches back to times beyond the memory of man. This is as g"ood a 
title, in its own nature, as any title that can be conceived. Blackstone says, " It is agreed on 
all hands, that occupancy gave the original title to the permanent property in the substance 
of the earth itself, which excludes every one else but the owner from the use of it.' 7 And the 
right to occupy their country forever has been solemnly and repeatedly guaranteed to the 
Cherokees, by the highest authorities of our nation. 

It is said the}' have only the title of occupancy, because they cannot sell their lands, except 
to the United States, and in a prescribed manner. Nor can they give away their lands, ex- 
cept to the United States. Their rights are restrained, in regard to the sale, or cession, of 
lands, for two good reasons. 1. They have solemnly agreed with the United States, that 
they will not sell, or cede, their lands, except as above mentioned. This was a fair stipula- 
tion, which they had full power to make, and which was intended to be, and actually is, for 
their benefit. %. The United States have forbidden the whiles to purchase of the Indians, 
which the United States had a perfect right to do, and which was done for the protection of 
the Indians. Foreign nations are, of course, excluded from passing our national boundaries ; 
and all the large tribes of Indians have covenanted not to form any connexion with foreign- 
ers, which shall be inconsistent with living under the protection of the United States. 

In the case of Johnson and M'Intosh, which was decided in 1823, the Supreme Court thus 
expressed itself : — 

" It has never been doubted that either the United States or the several States had a clear 
title to all the lands within the boundary lines described in the treaty, [of 1783] subject only to 
the Indian right of occupancy, and that the exclusive power to extinguish that right was vested 
in that government which might constitutionally exercise it." 8 Wheaton's Reports, p. 585. 

The question, in the case of Johnson and M'Intosh, was whether grants of land in the 
wilderness, which is now the State of Illinois, made to private purchasers, citizens of Vir- 
ginia, in the years 1773 and 1775, by chiefs of the Illinois and Piankeshaw tribes of Indians, 
are good and valid grants, binding on the courts of the United States. The Court decided, 
that such grants were not valid ; and, in the course of the decision, went somewhat at length 
into the consideration of Indian title. We can confidently declare it as our opinion, that, in 
this very elaborate and candid discussion, the Court advanced nothing, which has an unfa- 
vorable bearing upon the claims of the Cherokees. 

The Court said, indeed, that ' the United States, or the several States, have a clear title to 
all the lands within our national limits.' What the Court meant by " a clear title" is abun- 
dantly explained to be the exclusive right of acquiring the Indian lands. European nations, 
the colonies of Europeans, and the independent States of North America, have all claimed 
that the government, to the exclusion of private purchasers, has the right of acquiring the pos- 
session of Indian territory j and that foreign nations could not intrude upon the discoveries of 



107 



each other respectively. These principles have been so constantly asserted by all the gov- 
ernments above- mentioned, that they have become principles of established law ; and the 

J Court is bound by them, and cannot go into the consideration of the principles of abstract 

j justice. That is, as we all know, it is the duty of Use Court to declare what the law is, and 
apply it — not to make the law. The " dear title," then, which the government has to Indian 
lands, comprises, first, the power of excluding foreign nations from intruding upon these 
lands j secondly, the power of forbidding private men from purchasing them j and thirdly, 
since the adoption of the federal constitution, the exclusive power of the general government 

| to extinguish Indian title by treaty. All these claims of the government have been admitted 

1 by the Cherokees, Creeks, Chickasaws, and Choctaws, in the various treaties now in force. 

| The Indians make no complaint, in regard to these claims. Though their natural rights are 
circumscribed in this manner, yet they very well know it is for their benefit ; and they would 

j be the first to desire, that their communities might be defended from the intrigues of foreign 
nations, and the frauds of private speculators. They would no more think of complaining 
that their natural rights are limited, by the claims of the United States, and the stipulations 

■ made, for the benefit of both parties, in accordance with these claims, than the people of the 
United States generally would think of complaining, that the rights of the several States are 
abridged by the powers given to the general government. 

In the passage quoted from Wheaton's Reports, the Court said that the title of the United 
States was subject to the Indian right ef occupancy. What is meant by a right of occupancy ? 
Let the reader look again into vv he a ton, p. 574, and he will find, that the Court said of the 
" original inhabitants" of this continent generally, " They were admitted to be the rightful 

I occupants of the soil, with a legal as well as just claim to retain possession of it, and to use 

j it according to their own discretion." 

This is said, be it remembered, respecting Indians generally, found in their native condi- 

| tion, and undefended by any guaranty of territory, or any express stipulation in their favor. 

I The Indians, then, have the right of occupying their country, of retaining possession of it, of 
using it according to their discretion ; and thus far they have a legal as well as just claim. 

| But they cannot sell, except to the government. 

Here we have a clear distinction between the rights of the Indians and the rights of Euro- 
peans, as fixed by Europeans themselves, and a thousand times admitted by different tribes 
of Indians. The original inhabitants have the right of occupying" their country, and using it, 
as long as they please, according to their discretion ; the descendants of Europeans have 
confided to their government the exclusive power of extinguishing the Indian title. 

These principles are sufficient for the absolute defence of the Cherokees, so long as they 
behave peaceably, and are not disposed to sell their country. But over and above all this, 
the United States have solemnly guaranteed to them all their lands ; — have covenanted to ex- 

I pel intruders ; — have made laws for this purpose ; — and have, in a hundred instances, admit- 
ted that the Cherokee country was under Cherokee jurisdiction, and irresistibly implied, that 
it was not under the jurisdiction of Georgia. The same thing has been implied, in number- 
less instances, in the language of the Legislature and Executive of Georgia, as could easily 
be shown, if our limits permitted. These agents of the State have always been in the habit 
of distinguishing between the u chartered limits," or the "conventional limits," and the actual 
limits of the State. It is not five years since Governor Troup wrote a letter to the Secretary 
of War, in which he argued, that the soil and jurisdiction of the Creek country went 
together 5 and that both "passed" to the State of Georgia by the treaty of the Indian Spring. 
If soil and jurisdiction passed to Georgia by treaty, it requires no conjurer to say, that they 
were not in Georgia before the treaty toas made ; and, of course, that the soil and jurisdiction 
of the Cherokee country, concerning which no treaty of cession has been made, are not in 
Georgia. 

We make two more quotations from the opinion of the Court, in the case of Johnson and 
Mlntosh :— 

" It has never been contended, that the Indian title amounted to nothing. Their right of 
possession has never been questioned. The claim of government extends to the complete 
ultimate title, charged with this right of possession, and to the exclusive power of acquiring 
that right." p. 603. 

We understand the Court here as declaring, that all (he world admits the right of the In- 
dians to retain their possession. The government claims the sole power of acquiring of the 
Indians their unquestioned right of possession ; but this claim of the government is always to 
be understood as charged, or incumbered, with the existing occupancy of the Indians. In 
other words, the right of the Indians to occupy their country as long as they please, is in no 
wise diminished or affected, by the claim of the government to be the exclusive purchaser j 
and the claim of exclusive purchase/ or, as it has usually been called, this right of pre-emp- 
tion, is the '* ultimate title," of which the Court speaks. 

Again : u The absolute ultimate title has been considered as acquired by discover}-, suh- 
i ject only to the Indian title of occupancy , which title the discoverers possessed the exclusive 
i right of acquiring. Such a right [that is, the Indian title of occupancy] is no more incom- 
I patible with a seisin in fee, than a lease for years is, and might as effectually bar an eject- 
ment." p. b[)'Z. 

j Common readers, not being acquainted wiih legal terms, cannot take the force of this quo- 
tation. Let us explain it. If Mr. Prime holds a house in Wall-street to himself -and his 



108 



heirs forever, he is said to be seised in fee of that house. He may make a lease of the house, 
for a valuable consideration, to the corporation of the Merchants' Exchange, for the tens of 
a thousand years, and the corporation may take possession : still Mr. Prime is seised in fee of 
the house, and has the ultimate title to him and his heirs. The lease of the house for a thou- 
sand years may be worth $100,000 ; and Mr. Prime's " ultimate title" which is to be enjoyed 
by his heirs a thousand years hence, would not probably sell at auction for enough to pay a 
lawyer for making a deed. 

Now the Court, in effect, say, reverting to the doctrine laid down in the case of Fletcher 
and Peck, " The decision that the right of pre-emption, which the United States are to exer- 
cise for the use of Georgia, may be technically called a seisin in fee, no more proves that 
Georgia may take possession of the Cherokee country and drive out the natives, or that the 
grantees of Georgia may bring a suit of ejectment against the Indians, and thus get posses- 
sion, than the fact that Mr. Prime is seised in fee of a house in Wall-street would prove that 
he might bring an ejectment against the corporation of the Merchants' Exchange, when he 
had himself put the said corporation in possession of the premises, by a lease for a thousand 
years." 

The Cherokees might " as effectually bar an ejectment,' 7 to use the very words of the 
Court, by pleading that possession, to which they have a legal and just claim, as, in the case 
supposed, the Merchants' Exchange could resist the suit of Mr. Prime, by pleading his own 
lease for a thousand years. 

It is natural that people should mistake in regard to the decision of the Court, by the mere 
sonnd of the words used ; that is, by taking the popular meaning of words, rather than the 
legal and technical meaning. Thus, for instance, the " undoubted title" and the " ultimate 
title" of an acre of land bordering on Wall-street, might not be worth five cents ; because it 
might be charged or incumbered, with '•' the mere right of occupancy for a certain period, 
which right of occupancy might be worth a million of dollars. But as to an}' mistakes of 
this kind, the Court is not in fault. In making legal decisions, it is often a matter of neces- 
sity that technical words should be used. 

The Court was not called in either of the cases cited, to say any thing about treaties with 
the Indians; but should these treaties ever come before the Court, it will be seen that the 
" judges" of this Court, and of every other Court in the United Stales, are as much "bound" 
by them, as by the constitution itself. N. Y. Observer, 



EXTRACTS FROM THE OPINION OF CHANCELLOR KENT, IN THE CASE 
OF GOODELL vs. JACKSON. Johnson's Reports, vol. xx. p. 693. 

Indians not under the laws of New York. 

" The Oneidas, and the other tribes composing the six nations of Indians, were, originally, 
free and independent nations. It is for the counsel, who contend that they have now ceased 
to be a distinct people, and become completely incorporated with us, and clothed with all the j 
rights, and bound to all the duties of citizens, to point out the precise time when that event 
took place. I have not been able to designate the period, or to discover the requisite evi- 
dence of such an entire and total revolution. Do our laws, even at this day, allow these 1 
Indians to participate equally with us, in our civil and political privileges 1 Do they vote at 
our elections, or are they represented in our legislature, or have they any concern, as jurors 
or magistrates, in the administration of justice 1 Are they, on the other hand, charged with 
the duties and burthens of citizens 1 Do they pay taxes, or serve in the militia, or are they i 
required to take a share in any of the details of our local institutions ? Do we interfere with j 
the disposition, or descent, or tenure of their property, as between themselves? Do we 
prove their wills, or grant letters of administration upon their intestates' estates ? Do our I 
Sunday laws, our school laws, our poor laws, our laws concerning infants and apprentices, i 
or concerning idiots, lunatics, or habitual drunkards, apply to them ? Are the}' subject to ' 
our laws, or the laws of the United States, against high treason 3 and do we treat and punish 
them as traitors, instead of public enemies, when they make war upon us 1 Are they sub- 
ject to our laws of marriage and divorce, and would we sustain a criminal prosecution for 
bigamy, if they should change their wives or husbands, at their own pleasure, and according 
to their own customs, and contract new matrimonial alliances ? I apprehend, that every one j 
of these questions must be answered in the negative, and that on all these points they are \ 
regarded as dependent allies, and alien communities." pp. 709, 710. 

" In my view of the subject, they have never been regarded as citizens or members of our 
body politic, within the contemplation of the constitution. They have always been, and are ir 
still considered by our laws as dependent tribes, governed by their own usages and chiefs, 
but placed under our protection, and subject to our coercion, so far as the public safety j 
required it, and no farther." p. 7i0. 

Indians always considered as separate communities. 

"Through the whole series of our colonial history, these Indians were considered as de- 
pendent allies, who advance for themselves the proud claim of free nations, but who had vol- r 
untarily. and upon honorable terms, placed themselves and their lands under the protection 
of the British government. The colonial authorities uniformly negotiated with them, and 



109 



made and observed treaties with them, as sovereign communities, exercising the right of free 
deliberation and action ; but, in consideration of protection, owing a qualified subjection, its 
a national, but not in any individual capacity, to the British crown. 

" No argument can be drawn against the sovereignty of these Indian nations, from the 
fact of their having put themselves and their lands under British protection. Such a tact is 
of frequent occurrence in the transactions between independent nations. 

" One community may be bound to another by a very unequal alliance, and still be a 
sovereign State. Though a weak Stale, in order to provide for its safety, should place itself" 
under the protection of a more powerful one, vet, according to Vattel, (B, 1. ch. 1. s. 5 and 
6.) if it reserves to itself the right of governing its own body, it ought to be considered as an 
independent Slate. There are several kinds of submission, says this same Jurist. (B. 1. ch. 
16. s. 194.) The submission may leave the inferior nation a part of the sovereignty, restrain- 
ing it only in certain respects, or it may totally abolish it, or the lesser may be incorporated 
with the greater power, so as to form one single State, in which all the citizens will have 
equal privileges. Now, it is very apparent, from our whole history, that the submission of the 
six nations has been of the former kind, and that, as an inferior nation, they were only 
restrained of their sovereignty in certain respects. Though born within our territorial limits, 
the Indians are considered as born under the dominion of their tribes. They are not our 
subjects, born within the purview of the law, because they are not born in obedience to us, 
They belong, by birth, to their own tribes, and these tribes are placed under our protection, 
and dependent upon us ; but still we recognize them as national communities. In this situa- 
tion we stood in relation to each other, at the commencement of our revolution. 

" The American Congress held a treaty with the six nations, in August, 1775, in the name, 
and on behalf of the United Colonies, and a convention of neutrality was made between 
them. ' This is a family quarrel between us and old England,' said the agents, in the name 
of the colonies ; ; you Indians are not concerned in it. We desire you to remain at home, 
and not join either side.' Again, in 1776, Congress tendered protection and friendship to 
the Indians, and resolved, that no Indians should be employed as soldiers in the armies of the 
United States, before the tribe, to which they belonged, should, in a national council, have 
consented thereunto, nor then, without the express approbation of Congress. What acts of 
government could more clearly and strongly designate these Indians as totally detached from 
our bodies politic, and as separate and independent communities ? 

"In 1778, Congress resolved, that they would chastise the Senecas, who had joined the 
enemy, and would reduce them to terms of peace ; and when some Seneca chiefs appeared 
at Philadelphia, they directed the board of war to inquire, whether they came in the charac- 
ter of representatives or ambassadors of their nation 1 And when, in 1779, Congress had 
resolved upon terms of peace with the Indians, the conditions were such as would be dictated 
to a public enemy, known as such by the laws of war; they had not the remotest resemblance 
to the terms or spirit of a negotiation with citizens or subjects who had broken their alle- 
giance. In 1783, Congress expressly waived the right of conquest over the Indians, and 
recommended proffers of peace and a friendly treaty, for the purpose of receiving them into 
favor and protection. Lastly, in October, 1784, a treaty of peace was made at Fort Stan- 
wix, between the United States and the sachems and warriors of the six nations ; and the 
United States gave peace to those of the six nations who had been hostile, and received them 
under protection, and required, that the hostile tribes should stipulate, that the Oneidas, and 
Tuscaroras, should be secured in the possession of their lands. 

" There was nothing, then, in any act or proceeding, on the part of the United States, 
during the revolutionary war, which went to impair, and much less to extinguish the national 
character of the six nations, and consolidate them with our own people. Every public doc- 
ument speaks a different language, and admits their distinct existence and competence as 
nations, but placed in the same state of dependence, and calling for the same protection 
which existed before the war." pp. 711 — 713. 

" In 1794, there was another treaty made between the United States and the six nations, 
in which perpetual peace and friendship were declared between the contracting parlies, and 
the United States acknowledged the lands reserved to the Oneida, Onondaga, and Cayuga 
nations, in and by their treaties with this State, to be their properly ; and the treaty contains 
this provision, which has a very important and a very decisive bearing upon the point under 
discussion : The United States and the six nations agree, that for injuries done by individu- 
als, on either side, no private retaliation shall take place, but complaint shall be made by the 
injured party to the other; that is, by the six nations, or any of them, to the President of the 
United Slates, and by or on behalf of the President, to the principal Chiefs of the six nations, 
or of the nation to which the offender belongs. What more demonstrable proof can we 
require, of existing and acknowledged sovereignty residing in those Indians. We have here 
the forms and requisitions peculiar to the intercourse between friendly and independent States, 
and they are conformable to the received institutes of the law of nations. The United States 
have never dealt with those people, within our national limits, as if they were extinguished 
sovereignties. They have constantly treated with them as dependent nations, governed by 
their own usages, and possessing governments competent to make and to maintain treaties. 
They have considered them as public enemies in war, and allied friends in peace. If mere 
territorial jurisdiction would make the six nations citizens of this Slate, the same effect must 
have been produced as to the numerous tribes of Indians included within the vast territorial 
limits of the United States; and it is worth a moment's attention to observe the relations 
existing between the United Stales and the Indians, to the south and to the wes;t. 



110 



u In the treaty between the United States and the Wiandols, Ottawas, Chippewas, and 
others, in 1785, it was provided, that if any Indian commit murder, or robbery, upon a citi- 
zen of the United Slates, they shall deliver him up to be punished according to our law. 
This surrender of criminals is here made part of a national compact, and the distinction is 
preserved between Indians and citizens 5 and, while we assume the right to redress the 
injuries of the one, we abandon the other to the protection of their own people. The treaties 
with the Cherokees, in 1785, and 1791, go further, and provide, that citizens of the United 
Slates committing robbery, or murder, on the Cherokees, shall be punished by us in like 
manner as if the same were committed upon one of our own citizens. They also contain a 
uew and striking provision, and that is, that citizens settling upon their lands, thereby forfeit 
the protection of the United States, and the Cherokees may punish them as they please. 
The same provision, relative to the surrender and punishment of persons guilt}' of murder, or 
robbery, is inserted in the treaties with the Choctaws, Chickasaws, Shawanese, Creeks, Ot- 
tawas, Chippewas, &c. And, in the treaties with the latter tribes, in 1789, and 1795, citi- 
zens settling on their lands are declared to be out of the protection of the United States, and 
liable to punishment at the discretion of the Indians. 

" It would seem to me to be almost idle to contend, in the face of such provisions, that 
these Indians were citizens or subjects of the United States, and not alien and sovereign tribes. 

u In the ordinance of Congress, in 1787, passed for the government of the territory of the 
United States northwest of the Ohio, it was declared, that the Indians within that territory 
should never be invaded or disturbed in their property, rights, or liberties, unless in just and 
lawful war. By a just and lawful war, is here meant, a controversy according to the public j 
law of nations, between independent States, and not an insurrection and rebellion. The 
United States have never undertaken to negotiate with the Indian tribes, except in their na- j 
tional character. They have always asserted their claims against them in the only two ways 
known to nations, upon the ground of stipulation by treaty, or by force of arms. The ordi- 
nance further provided, that laws should be made to prevent wrongs done to the Indians 5 
and this implies a state of dependence and imbecility on the part of the Indians, and that 
correspondent claim upon us for protection, arising out of the superiority of our condition, 
which afford the true solution to most of our regulations concerning them." pp. 713 — 715. 

Manner in which the Indian sovereignties should be extinguished. 

u I do not, therefore, consider the act of 1822, as affecting the question, whether the 
remainder of the six nations still rightfully exist as a separate people, or whether they have | 
become amalgamated with us, and incorporated into the body politic, as members and citi- , 
zens. In my opinion, that statute had no such intention 5 and when the time shall arrive for 1 
us to break down the partition wall between us and them, and to annihilate the political j 
existence of the Indian's as nations and tribes, I trust we shall act fairly and explicitly, and 
•endeavor to effect it with the full knowledge and assent of the Indians themselves, and with 
the most scrupulous regard to their weaknesses and prejudices, and with the entire approba- 
tion of the government of the United States. I am satisfied, that such a course would be j 
required by prudence, and would become necessary, not only for conscience sake, but for ! 
the reputation of our justice." p. 717. 

Guardian care of our government, and fidelity of the Indians. 

" Thus, in the resolution of Congress of January, 1776, regulating trade with the Indians, 
it was declared, that no person should be permitted to trade with them without license, and J 
that the traders should take no unjust advantage of their distress and intemperance. In a 1 
•speech, on behalf of Congress, to the six nations, in April, 1776, it was said to them, that 
Congress were determined to cultivate peace and friendship with them, and prevent the 
white people from wronging them in any manner, or taking their lands : that Congress 
wished to afford protection to all their brothers the Indians, who lived with them on this great 
island ; and that the white people should not be suffered, by force or fraud, to deprive them of 
any of their lands. And in November, 1779, when Congress were discussing the conditions 1 
of peace to be allowed to the six nations, they resolved, that one condition should be, that no 
land should be sold or ceded by any of the said Indians, either as individuals, or as a nation, 
unless by consent of Congress. _ _ r 

" This resolution, almost coeval with our constitution, shows the important fact, that indi- | 
vidual Indians, as well as tribes and communities, were, and ought to be, equally protected | 
from imposition in the sale of their lands ; and if such were the views of Congress in J779, 
why should not the same views have been in the contemplation of our constitution in 1777 1 ! 

" The government of the United States had, in the earliest and purest days of the republic, 
watched with great anxiety over the property of the Indians intrusted to their care, it must jq , 
have been immaterial from what source the property proceeded, and whether it was owned j, j 
by tribes, or families, or individuals. If it was Indian property in land, it had a right to 
protection from us as against our own people. The Indians under the colony administrations, | 
confided their lands to our protection. As early as 1684, the Onondagas and Cayugas, for } j 
instance, told the Governor of New York, that they were a free people, and had put their j 
lands and themselves under the protection of the Duke of York, and of the great Sachem g ( 
Charles, that lived on the other side of the great water. The friendship of the six nations ( 
towards the colony government, and the protection of the government to them, continued j 
unshaken for upwards of a century, and this mutual good faith has received the most honora- k ( 
ble, and the most undoubted attestations. Governor Colden, in his history of the six nations, i 



Ill 



stales, (hat the Dutch entered into an alliance with them, which continued without any 
breach on either side, until the English conquered the colony in 1G64. Friendship and pro- 
tection were then renewed, and the Indians, he says, observed the alliance on their part 
strictly to his day ; and we know that their fidelity continued unshaken down to the period of 
our revolution. On one occasion, the colonial assembly, in their address to the governor, 
expressed their abhorrence of the project of reducing the Indians by force, and possessing 
themselves of their lands ; for, to the steadiness of these Indians to the interest of Great Bri- 
tain, they said, the}' owed, in a great measure, their internal security. The colony gover- 
nors constantly acknowledged their friendship and services. We have, on the other hand, 
in favor of the colony, the report of a committee of Congress, to which I have already 
alluded, ' that the colony of New York had borne the burden, both as to blood and treasure, 
of protecting and supporting the six nations for more than one hundred years, as the de- 
pendents and allies of the government.' 

" After all this, who will hesitate to say, that it was worthy of the character of our 
people, enjoying so great a superiority over the Indians, in the cultivation of the mind, in the 
lights of science, the distinctions of properly, and the arts of civilized life, to have made the 
protection of the property of the feeble and dependent remnants of the nations, within our 
limits, a fundamental article of the government ? It is not less wise than it is just, to give ta 
that article a benign and liberal interpretation, in favor of the beneficial end in view. We 
ought to bear in mind, when we proceed to the consideration of the subject, that the article 
was introduced for the benefit and protection of the Indians, as well as for our own good, and 
that we are bound to the performance of it, not only by duty, but by gratitude. The six na- 
tions were a great and powerful confederacy, and our ancestors, a feeble colony, settled near 
the coasts of the ocean, and along the shores of the Hudson and the Mohawk, when these 
Indians first placed themselves, and their lands, under our protection, and formed a covenant 
chain of friendship that was to endure for ages. And when we consider the long and dis- 
tressing wars in which the Indians were involved on our account with the Canadian French, 
and the artful means which were used, from time to time, to detach them from our alliance, 
it must be granted that fidelity has been no where better observed, or maintained with a 
more intrepid spirit, than by these generous barbarians." pp. 723 — 725. 

" The act of March 15th, 1799, considers the Oneidas as very defenceless ; and, in order 
to protect them from imposition, it directs the attorney of the district to advise and direct: 
them in all controversies that may arise between the tribe, or any individual thereof, and any 
other person, and to defend suits instituted against them, and to institute suits for them, and 
particularly for trespasses committed upon their lands." p. 732. 

This last paragraph is commended to the particular attention of Congress. The State of 
New York provided, at the public expense, that the small tribe of Oneidas should have a 
competent legal adviser, in all their exposures to fraud and imposition. Does k not become- 
the magnanimity, I might say the justice, of our national government to provide immediately^ 
and at the public expense, that the Cherokees should have, in their present difficult circum- 
stances, as able and independent and disinterested legal advisers and advocates, as can be- 
found in the United States 1 They are precisely in the condition of a man, whom the English 
jaw describes, (and our law loo,) as inops consilii, and for whom counsel should therefore be- 
provided, at the expense of the government. In the selection of the learned and honorable 
men, to whom this high trust should be confided, the wishes and feelings of the Cherokees 
themselves should doubtless be consulted. 

The Secretary of War, in a letter addressed to the Rev. Eli Baldwin, dated Rip Raps,. 
Aug. 25, 1829, asks the following question : " What would the authorities of the State of 
New York sa}' to an attempt, on the part of the Six Nations, to establish, within her limits, 
a separate and independent government ?" By a diligent perusal of the foregoing extracts, 
and especially by such a perusal of the whole case, the Secretary of War will ascertain, 
what the authorities of the State of New York have said on this subject. 



EXTRACTS FROM JUDGE STORY's CENTENNIAL DISCOURSE. 

The Legislature of Georgia says, that the governments of Europe, and colonies of Euro- 
peans, asserted the right of driving Indians from their lands by virtue of discovery. The 
reader has seen that Chief Justice Marshall and Chancellor Kent hold a doctrine directly op- 
i posed to such an assumption. It may be interesting lo see what another learned Judge, who 
! is worthy to be associated with the olher two, has said on this subject. 

I " Our forefathers did not attempt to justify their own emigration and settlement, upon the 
I European doctrine of the right of discovery. Their patent from the Crown contained a grant 
of this right; but they felt that there was a more general question behind. 1 What warrant 
have we to take that land, which is, and hath been of long time possessed by others, the sons 
of Adam?' Their answer is memorable for its clearness, strength, and bold assertion of 
principles. That which is common to all (said they) is proper to none. This savage people 



112 



mleth over many lands without tide or property. ' Wby may not Christians have liberty to 
go and dwell amongst them in their waste lands ? God hath given to the sons of men a two- 
fold right to the earth. There is a natural right and a civil right. The first right was natu- 
ral, when men hdd the earth in common. When afterwards they appropriated some parcels 
of ground, by enclosing and peculiar manurance, this in time got them a civil right. There 
is more than enough land for us and them. God hath consumed them with a miraculous 
plague, whereby the greater part of the country is left void of inhabitants. Besides, we shall 
come in with the good leave of the natives.' Such arguments were certainty not unworthy 
of men of scrupulous virtue. They were aided by higher considerations, by the desire to 
propagate Christianity among the Indians 5 a desire, which is breathed forth in their confi- 
dential papers, in their domestic letters, in their private prayers, and in their public devotions. 
In this object they were not only sincere, but constant. So sincere and so constant, that one 
of the grave accusations against them has been, that in their religious zeal, they compelled 
the Indians, by penalties, to attend public worship, and allured them, by presents, to abandon 
their infidelity. In truth, the propagation of Christianity was a leading motive with many 
of the early promoters of the settlement; and we need no better proof of it, than the estab- 
lishment of an Indian school at Harvard College to teach them the rudiments of Christian faith. 

" Whatever, then, may have been the case in other parts of the continent, it is a fact, and 
it should not be forgotten, that our forefathers never attempted to displace the nations by 
force, upon any pretence of European right. They occupied and cultivated what was ob- 
tained by grant, or was found vacant. They constantly respected the Indians in their settle- 
ments and claims of soil. They protected them from their enemies, when they sought refuge 
among them. They stimulated no wars for their extermination. During the space of fifty 
years, but a single case of serious warfare occurred •; and though we cannot but lament the 
cruelties then perpetrated, there is no pretence, that they were the aggressors in the contest. 
Whatever complaints, therefore, may be justly urged by philosophy, or humanity, or religion, 
in our day, respecting the wrongs and injuries of the Indians, they scarcely touch the Pilgrims 
of New England. Their hands were not imbrued in innocent blood. Their hearts were not 
heavy with crimes and oppressions engendered by avarice. If they were not wholly without 
blame, they were not deep in guilt. They might mistake the time, or the mode of christian- 
izing and civilizing the Indians; but they did not seek pretences to extirpate them. Private 
hostilities and butcheries there might be ; but they were not encouraged or justified by the 
government. It is not, then, a just reproach, sometimes cast on their memories, that their 
religion narrowed down its charities to Christians only; and forgot, and despised, and 
oppressed these forlorn children of the forest." pp. 72 — 74. 



TREATY WITH THE CHOCTAWS. 
The fourth article of the treaty of 1820 is in the following words : 

" The boundaries hereby established, between the Choctaw Indians and the United States, 
on this side of the Mississippi river, shall remain without alteration until the period, at which 
said nation shall become so civilized and enlightened, as to be made citizens of the United 
States ; and Congress shall lay off a limited parcel of land for the benefit of each family, or 
individual, in the nation." 

In the subsequent treaty, negotiated by Mr. Calhoun, Jan. 20, 1825, the same subject was 
taken up, as follows : 

" It is further agreed, that the fourth article of the treaty aforesaid shall be so modified, as 
that the Congress of the United Stales shall not exercise the power of apportioning the lands, 
for the benefit of each family or individual, of the Choctaw nation, and of bringing them 
under the laws of the United States, but with tlie consent of the. Choctaw nation.''' 

In framing the fourth article here referred to, the intention must have been, either that the 
Choctaws should ultimately form a territory by themselves, which should be taken under the 
care of the general government; or that they should become citizens of the State of Missis- 
sippi, and thus citizens of the United States. But neither of these things were to take place, 
till the Choctaws should have become enlightened, and Congress should have declared them 
to be so, and should have made an apportionment of their lands. 

In the last treaty, framed less than five years ago, it is solemnly stipulated, that the Choc- 
taws shall not be brought under the laws of the United States in any sense, " but with the con- 
sent of the Choctaw Nation! 1 This is the. same thing as to say, that the Choctaw nation is 
left where it was originally, and where the other Indian nations now are ; viz. under their 
own laws, and not under the laws of any State, nor of the United States. 

The President of the United States, in his late Message to Congress, says very truly : 
" Upon this country, more than any other, has, in the Providence of God, been cast the special 
guardianship of the great principle of adherence to written constitutions." Let it be remem- 
bered, that the constitution of the United States is express and positive, in regard lo the bind- 
ing nature of treaties; and that, by a solemn stipulation in our last treaty with the Choctaws, 
negotiated by the Secretary of War, now Vice President of the United States, that nation of 
Indians is not tobe brought under our laws BUT WITH ITS OWN CONSENT. 



BOSTON : — T. R. MARVIN. PRINTER. 



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